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RECESVED 

MAY 4 1994 

KATHRIN?. a EVERETT TkC 

LWV LIV.RARY 

— TlVDRrH CAROLINA 

REGISTER 



IN TfflS ISSUE 



EXECUTIVE ORDERS 



IN ADDITION 

Wildlife Resources Commission Proclamations 






PROPOSED RULES 
Agriculture 

Environment, Health, and Natural Resources 
Human Resources 
Justice 
Labor 

Medical Examiners 
Optometry, Board of Examiners 



LIST OF RULES CODIFIED 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: May 2, 1994 



Volume 9 • Issue 3 • Pages 123 - 226 



TNFORMATTON ABOUT THK NORTH CAROUNA RECwTSTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the fmdings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,(X)0 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents ($2.50) for 10 pages or less, 
plus fifteen cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
($750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
as. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 41-43 123 

n. IN ADDITION 

Wildlife Resources Commission 
Proclamations 125 

ra. PROPOSED RULES 

Agriculture 

Plant Industry 127 

Environment, Health, and 

Natural Resources 

Solid Waste Management 171 

Water Resources 165 

Human Resources 

Facility Services 128 

Social Services 136 

Justice 

Criminal Justice Education and 
Training Standards Commission . 149 
Labor 

OSHA 160 

Licensing Boards 

Medical Examiners 192 

Optometry, Board of Examiners . . 194 



rV. LIST OF RULES CODIFIED 



196 



V. RRC OBJECTIONS 204 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 207 

Text of Selected Decisions 

93 OSP0875 211 

93 EHR 1045 214 

93 DOJ 1071 218 

Vn. CUMULATIVE INDEX 225 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

PubUc 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** EarUest 

Effective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Revised 03/94 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 41 

EXTENDING THE GOVERNOR'S 

COMMISSION ON REDUCTION 

OF INFANT MORTALITY 

By the authority vested in me as Governor by the 
laws and constitution of North Carolina, IT IS 
ORDERED: 

The Governor's Commission on Reduction of 
Infent Mortality, as established in Martin Adminis- 
tration Executive Order Number 99 and extended 
by Number 185, is hereby extended until June 30, 
1995. 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 12th 
day of April, 1994. 

EXECUTIVE ORDER NO. 42 
RESCISSION OF EXECUTIVE ORDERS 

By the authority vested in me as Governor by the 
laws and constitution of North Carolina, IT IS 
ORDERED: 



Section 6. 

Executive Order 156 of the Martin Administra- 
tion (North Carolina Committee on Literacy and 
Basic Skills), as amended by Executive Order 185, 
is hereby rescinded. 

Section 7. 

Executive Order 143 of the Martin Administra- 
tion (North Carolina Advisory Council on Voca- 
tional and Applied Technology Education), as 
extended by Executive Order 185, is hereby 
rescinded. 

Section 8. 

Memorandum of Agreement concerning the 
establishment of the De Soto Trail Commission, 
dated April 13, 1988, is hereby rescinded. 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 12th 
day of April, 1994. 

EXECUTIVE ORDER NO. 43 

NORTH CAROLINA STATE HEALTH 

COORDINATING COUNCIL 



Section 1. 

Executive Order 78 of the Martin Administration 
(Governor's Task Force on Injury Prevention), as 
extended by Executive Order 185, is hereby 
rescinded. 

Section 2. 

Executive Order 136 of the Martin Administra- 
tion (North Carolina Advisory Council on Tele- 
communications in Education), as extended by 
Executive Order 185, is hereby rescinded. 

Section 3. 

Executive Order 153 of the Martin Administra- 
tion (North Carolina 2000 Steering Committee), as 
extended by Executive Order 185, is hereby 
rescinded. 

Section 4. 

Executive Orders 110 and 161 of the Martin 
Administration (Advisory Council on International 
Trade) is hereby rescinded. 

Section 5. 

Executive Order 36 of the Martin Administration 
(Governor's Advisory Committee on Agricultural 
Parks) is hereby rescinded. 



By the authority vested in me as Governor by the 
laws and constitution of North Carolina, IT IS 
ORDERED: 

Section 1. Establishment. 

The North Carolina State Health Coordinating 
Council is hereby established. 

Section 2. Duties. 

The Council shall have the following duties and 
functions: 

(a) Serve as a forum for hearing regional 
concerns and recommendations relating to 
health planning. 

(b) Compile a list of state health needs and 
advise the Department of Human Re- 
sources. 

(c) Advise the Department of Human Re- 
sources on issues related to state health 
needs, giving attention to local, regional 
and statewide needs. 

(d) Review and comment on contents of 
documents related to health planning and 
make recommendations concerning them 
to the Secretary of Human Resources and 
the Governor. 

(e) Advise the Department of Human Re- 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



123 



EXECUTIVE ORDERS 



sources on cost effective mechanisms for 
achieving health needs, 
(f) Prepare the Annual State Medical Facili- 
ties Plan and present the plan to the 
Governor. 

Section 3. Membership. 

The Council shall consist of 27 members who 
shall be appointed by the Governor as follows: 

(a) One member from the academic medical 
centers. 

(b) One member from the area health educa- 
tion centers. 

(c) Two members from business and industry 
(at least one individual representing small 
business and one representing large busi- 
ness). 

(d) One member from the health insurance 
industry. 

(e) One member from the North Carolina 
Association of County Commissioners. 

(f) One member from the North Carolina 
Health Care Facilities Association. 

(g) One member from the North Carolina 
Hospital Association. 

(h) One member from the North Carolina 
Association for Home Care. 

(i) One member from the North Carolina 
Association of Long Term Care Facili- 
ties. 

(j) One member from the North Carolina 
Association of Local Health Directors. 

(k) One member from the North Carolina 
Medical Society. 

(1) One member from the North Carolina 
House of Representatives. 

(m) One member from the North Carolina 
Senate. 

(n) One member from the United States 
Department of Veterans Affairs (non- 
voting). 

(o) Twelve at-large members to represent 
other health professional associations and 
to ensure regional representation. 

Section 4. Terms of membership. 

The terms of membership of the Council shall be 
staggered so that the terms of approximately one- 
third of the members shall expire in a single 
calendar year. Eight members shall be designated 
to serve initial terms of one year, eight to serve 
initial terms of two years, and nine to serve initial 
terms of three years. After the first three years, 
all members shall be appointed for a term of three 
years. Terms shall expire on December 31 and 



new terms shall begin on January 1 . 

Section 5. Vacancies. 

A vacancy occurring during a term of appoint- 
ment is filled in the same manner as the original 
appointment and for the balance of the unexpired 
term. 

Section 6. Travel Expenses. 

Members of the Council shall receive necessary 
travel and subsistence expenses in accordance with 
the provisions of G.S. 138-5. 

Section 7. Chairman. 



The Chairman and Vice Chairman of the Council 
shall be appointed by the Governor. The term of 
office for the Chairman and Vice Chairman shall 
be two calendar years. The Council may elect 
other such officers as it deems necessary. 

Section 8. Meetings. 

The Council shall meet quarterly and at other 
times at the call of the Chairman or upon written 
request of at least ten (10) of its members. All 
business meetings of the Council, its committees 
and subcommittees, or special task forces shall be 
open to the public. 

Section 9. Staff Assistance. 

The Department of Human Resources shall 
provide clerical support and other services re- 
quired by the Council. 

Section 10. 

Executive Order Number 13, as amended by 
Executive Orders 51, 93 and 185, of the Martin 
Administration is hereby rescinded. 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 15th 
day of April, 1994. 



124 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



IN ADDITION 



Ihis Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



North Carolina Wildlife Resources Commission 

512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919-733-3391 
Charles R. Fullwood, Executive Director 

PROCLAMATION 

Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting 
pursuant to North Carolina General Statute §113-292(cl) and authority duly delegated by the Wildlife 
Resources Commission, hereby declares that effective at 12:01 a.m. on April 21, 1994, the season for 
harvesting striped bass by hook-and-line is closed in all inland and joint waters of the Roanoke River Striped 
Bass Management Area. 

The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters 
of the Roanoke River, extending from its mouth to Roanoke Rapids Dam and all tributaries of the Roanoke 
River, including but not limited to, the Cashie, Middle, and Eastmost Rivers and their tributaries. 

This proclamation shall remain in efl'ect until a new proclamation reopening the described waters or 
portions thereof for striped bass fishing is issued. 

NOTES: 

a) This Proclamation is issued under the authority of N.C.G.S. §§113-132; 113-134; 113-292; 
113-304; and 113-305. 

b) The striped bass harvest quota for the hook and line sport fishery of the Roanoke River 
Striped Bass Management Area has been met, and the area is closed for striped bass fishing 
until reopened as prescribed herein. 

c) All striped bass regardless of condition taken subsequent to the effective date and time of this 
Proclamation shall be immediately returned to the waters where taken and no striped bass 
may be possessed. 

d) Any person who violates this Proclamation also violates applicable law and is subject to the 
sanctions provided by law. 



NORTH CAROLINA WILDLIFE RESOURCES COMMISSION 



by April 18. 1994 

Charles R. Fullwood Date 

Executive Director 



9:3 NORTH CAROLINA REGISTER May 2, 1994 125 



IN ADDITION 



North Carolina Wildlife Resources Commission 

512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919-733-3391 
Charles R. Fullwood, Executive Director 

PROCLAMATION 

Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting 
pursuant to North Carolina General Statute §§113-292(cl) and authority duly delegated by the Wildlife 
Resources Commission, hereby declares that the season for harvesting striped bass by hook-and-line shall close 
in all waters of the Roanoke River Striped Bass Management Area downstream of the Edwards Ferry Boating 
Access Area at US 258 bridge on the Roanoke River in Halifax County at 12:01 a.m. 2 April 1994. 

In the Roanoke River and its tributaries upstream of the Edwards Ferry Boating Access Area at US 
258 bridge striped bass may be harvested from 12:01 a.m. on Saturdays through 12:00 midnight on Sundays, 
and from 12:01 a.m. through 12:00 midnight on Wednesdays. On all other days all striped bass caught, 
regardless of condition, shall be immediately returned to the waters where taken and no striped bass may be 
possessed. 

The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters 
of the Roanoke River and its tributaries, extending from its mouth to Roanoke Rapids Dam, including the 
Cashie, Middle, and Eastmost rivers and their tributaries. 

This Proclamation shall be effective at 12:01 a.m. 2 April 1994 and shall remain in effect until a new 
proclamation closing described waters or portions thereof for striped bass fishing is issued. 

This proclamation supersedes and replaces all prior proclamations. 

NOTES: 

a) This Proclamation is issued under the authority of N.C.G.S. §§113-132; 113-134; 113-292; 
113-304; and 113-305. 

b) All striped bass regardless of condition caught during the closed season shall be immediately 
returned to the waters where taken and no striped bass may be possessed. 

c) Any person who violates this Proclamation also violates applicable law and is subject to the 
sanctions provided by law. 



NORTH CAROLINA WILDLIFE RESOURCES COMMISSION 



by March 29, 1994 



Charles R. Fullwood Date 

Executive Director 



126 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Board of Agriculture 
intends to amend rule cited as 2 NCAC 48C . 0008. 

1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on June 14, 1994 at the Agriculture Building, 
Room 306, 2 W. Edenton St.. Raleigh, NC 27601. 

Mxeason for Proposed Action: To allow sale of 
seed peanuts with no less than 60% germination. 

L^omment Procedures: Interested persons may 
present their statements either orally or in writing 
at the public hearing or in writing prior to the 
hearing by mail addressed to David S. McLeod, 
Secretary of the North Carolina Board of Agricul- 
ture. PO. Box 27647. Raleigh. NC 27611. 

liiditor's Note: This Rule was filed as a tempo- 
rary rule effective April 1, 1994 for a period of 
180 days or until the permanent rule becomes 
effective, whichever is sooner. 

CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48C - SEEDS 

.0008 LESS THAN 70 PERCENT HARD 
SEED AND GERMINATION 

The sale of any agricultural seed having a total 
percentage of germination and hard seed of less 
than 70 percent is prohibited, with the following 
exceptions: 

(1) field com shall germinate not less than 
90 percent; aad 

(2) cotton seed and Kentucky Bluegrass shall 
germinate not less than 60 percentv^ and 

£3} from April L, 1994 to July 30, 1994. 
seed peanuts which germinate from 60 
percent to 69 percent may be sold if the 
actual germination percent is shown on 
the analysis label and the words "Sub- 
standard Germination." in one-fourth 
inch or larger type, are shown on a sepa- 
rate tag of a different color than the 



analysis label. 
Statutory Authority G.S 106-277.9; 106-277.15. 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the Genetic Engineering Review 
Board intends to amend rule cited as 2 NCAC 48E 
.0302. 

1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearing will be conducted at 1:00 
p.m on June 10. 1994 at the Rollins Animal 
Disease Diagnostic Laboratory, 2101 Blue Ridge 
Blvd., Conference Room - Room §154, Raleigh, 
NC 27607. 

Mxeason for Proposed Action: To expand the list 
of activities permitted without the issuance of an 
individual permit. 

K^omment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing or in writing prior to the hearing by 
mail addressed to Scott Shore, Biotechnologist, 
Plant Industry Division, N.C. Department of 
Agriculture, PO. Box 27647, Raleigh, NC 27611. 
Further information on the proposed rule may be 
obtained by contacting Mr. Shore at the above 
address or calling (919) 733-6930. 

CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48E - GEIVETICALLY 
ENGINEERED ORGANISMS 

SECTION .0300 - TYPES OF 

PERMITS: PERMIT APPLICATIONS: 

PUBLIC NOTICE: PUBLIC HEARING: 

ISSUANCE OF PERMITS: MODIFICATION, 

SUSPENSION, REVOCATION OF PERMITS 

.0302 GENERAL PERMITS 

(a) The following classes of activities are hereby 
permitted by general permits and no permit appli- 
cation shall be required: 

(1) Releases of genetically engineered 
organisms between July 1, 1990 and 
December 31, 1990, which are other- 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



127 



PROPOSED RULES 



wise in compliance with state and feder- 
al law; 

(2) Releases resulting wholly from activi- 
ties performed inside contained facili- 
ties; 

(3) Releases of genetically engineered 
organisms from fermentation processes 
and associated recovery and purification 
processes where the processes or prod- 
ucts of those processes are regulated 
under the Food, Drug, and Cosmetic 
Act, 21 U.S.C. 301 et seq.. Toxic 
Substances Control Act, 15 U.S.C. 
2601 et seq., or Virus-Serum-Toxin 
Act, 21 U.S.C. 151 et seq.; 

(4) Releases or commercial uses of drugs 
or devices containing genetically engi- 
neered organisms and intended for 
prophylactic, therapeutic or diagnostic 
use in humans where such releases or 
uses are regulated under the Food, 
Drug, and Cosmetic Act, 21 U.S.C. 
301 et seq., or the Public Health Ser- 
vice Act, 42 U.S.C. 262, 26JTi 

(5) Releases or commercial uses of geneti- 
cally engineered plants where the plants 
have been determined to be of non- 
regulated status under provisions of 7 
CFR Part 340 (§340.6) by the Director, 
Biotechnology, Biologies, and Environ- 
mental Protection; Animal and Plant 
Health Inspection Service; United States 
Department of Agriculture; 

(6) Releases of genetically engineered 
plants where the environmental release 
of the plants has been acknowledged to 
be appropriate under the notification 
procedure of 7 CFR Part 340 (§340.3) 
by the Director. Biotechnology, 
Biologies. and Environmental 
Protection; Animal and Plant Health 
Inspection Service; United States 
Department of Agriculture. 

(b) In accordance with the Administrative 
Procedure Act, the Commissioner may suspend 
any activities being conducted under a general 
permit for failure to comply with the Genetically 
Engineered Organisms Act or any rules of this 
Subchapter, or if the Commissioner deems it 
necessary to protect agriculture, public health or 
the environment from potential adverse effects of 
a release or commercial use. Any such suspension 
shall be reviewed by the Board within 30 days. 
The Commissioner shall state in writing the 
reasons for such action. 



(c) Public notice of any proposed rule regarding 
the establishment of general permits shall be given 
in accordance with G.S. 150B-21.2 and by: 

(1) mailing a copy of the proposed general 
permit to any person who has filed a 
written request to be so notified; 

(2) publishing notice of the proposed gener- 
al permit at least once in newspapers 
having general circulation throughout 
the State. 

Statutory Authority G.S. 106-770. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to amend rules cited as 10 NCAC 3D 
. 0913. . 1001; 3M . 0202 - . 0203, . 0205 and . 0207. 

1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearing will be conducted at 9:30 
a.m. on June 10, 1994 at the Jane S. McKimmon 
Center, Gorman Street, Raleigh, NC. 

iVeason for Proposed Action: To make rules in 
this Chapter consistent with those in 21 NCAC 
32H which were adopted last year. 

\^omment Procedures: Written comments should 
be submitted to Mr. Jackie Sheppard, APA Coordi- 
nator, Division of Facility Services, P.O. Box 
29530, Raleigh, N.C 27626-0530 no later than 
June 10, 1994. Comments received after the 
public hearing will not be considered. Oral 
comments may be made at the hearing. The 
hearing room information will be available in the 
lobby or from the receptionist. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3D - RULES AND 

REGULATIONS GOVERNING 

AMBULANCE SERVICES 

SECTION .0900 - VEHICLES 

.0913 PERMIT 

(a) The ambulance permit must include the 



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following information: 

(1) vehicle identification number; 

(2) permit number; 

(3) ambulance provider identification num- 
ber; 

(4) identification of inspector; and 

(5) expiration date. 

(b) No person shall display or cause to be 
displayed or permit to be displayed or to knowing- 
ly possess, transfer, remove, imitate, or reproduce 
an ambulance permit, except by direction of the 
Office of Emergency Medical Services. 

(c) An ambulance shall be permitted in only one 
category. 

(d) Any vehicle permitted as a Category I 
Ambulance must contain all equipment required in 
10 NCAC 3D .lOQUa). .1002. ■1003(a). and 
.1103. 

(e) Any vehicle permitted as a Category I 
Ambulance which is in service and operating as a 
Mobile Intensive Care Unit as defined in 10 
NCAC 3M .0102. .0105. or .0107 must contain 
all equipment required in 10 NCAC 3M .0202. 
■0203. .0205. or .0207. 

{f) Each EMS provider must ensure that, at a 
minimum. 80% of the vehicles permitted as Cate- 
gory I Ambulances and which operate at a Mobile 
Intensive Care Level must contain all appropriate 
equipment and su pplies specified in 10 NCAC 3M 
.0202-.0207. 

Statutory Authority G.S. 131E-1 57(a). 

SECTION .1001 - AMBULANCE 
EQUIPMENT 

.1001 MEDICAL AND RELATED 
EQUIPMENT 

(a) Except as allowed by .0913(e) and (f) of 
these Rules. G category I ambulances for which 
permits are issued shall contain at least the follow- 
ing equipment exclusive of personal equipment 
carried by emergency medical technicians and 
ambulance attendants: 

(1) One portable aspirator capable of a 
minimum vacuum of 300 millimeters of 
mercury and a minimum air flow rate 
of 16 liters per minute with rapid draw- 
down time. A minimum of three, 
single use, non-opaque, one piece, rigid 
suction instruments and a suction rins- 
ing water bottle must be supplied with 
this unit; 

(2) One each portable squeeze bag ventila- 
tion unit (bag and mask) in adult and 



child sizes with transparent face mask 
capable of low temperature operation 
(32 degrees F or below) and an attach- 
ment for oxygen hookup. A minimum 
of two transparent, flexible, disposable 
oxygen supply tubes must be supplied 
with each unit; 

(3) Six nonmetallic, oropharyngeal airways 
sanitarily stored together in separate 
sizes ranging from 55 millimeters 
through 115 millimeters; 

(4) One bite stick either commercially 
manufectured or made of three tongue 
blades taped together and padded; 

(5) One portable oxygen unit consisting of 
the following components: 360 liter (D 
size) or larger oxygen cylinder; yoke 
regulator with cylinder contents gauge 
(2(XK) pounds per square inch) and 
gravity or non-gravity dependent flow 
gauge (0-12 liters per minute 
minimum); a minimum of three trans- 
parent, nasal cannulas in adult and child 
sizes; and a minimum of three each, 
adult and child, disposable, transparent, 
oxygen masks with delivery tubes and 
headband. A full spare cylinder (D 
size) of oxygen for this unit shall be 
furnished and stored on the ambulance 
vehicle; oxygen tanks must show date 
of last static test; 

(6) One small, one medium, and one large 
size adult extrication collar and one 
pediatric size extrication collar; 

(7) One rigid short backboard. The mini- 
mum size must be 14 inches wide by 32 
inches long. A stabilization device 
which is of the design to allow horizon- 
tal flexibility and vertical rigidity, 
equipped with chest and leg straps and 
accessories for stabilization of the head 
and neck may be substituted for the 
rigid short backboard; 

(8) One rigid long backboard a minimum 
of 16 inches wide by 72 inches long 
with two straps for patient stabilization 
and other accessories for stabilization of 
the head and neck; 

(9) Two sets of rigid padded board splints 
in the following sizes; 3 inches wide by 
15 inches long, 3 inches wide by 3 feet 
long, and 3 inches wide by 4-1/2 feet 
long. Other splints, in kit form, of 
inflatable design or rigid laminated and 
high density polyurethane foam con- 



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129 



PROPOSED RULES 



struction are acceptable. A kit must 
contain at least two full leg and two full 
arm splints; 

(10) One child and one adult size lower 
extremity traction splint with 
appropriate attachments; 

(11) Two sandbags constructed of a 
nonporous material for immobilization 
purposes. Minimum size must be 2 
inches by 4 inches by 12 inches. A 
head immobilizer may be substituted for 
sandbags; 

(12) Twelve 4 inch by 4 inch sterile gauze 
pads individually packaged; 

(13) Six sterile 5 inch by 9 inch absorbent 
dressings individually wrapped; 

(14) Twelve rolls of roller gauze; 

(15) Four rolls of adhesive tape; 

(16) Four sterile nonadhering, nonporous 
dressings for an open chest wound. 
Minimum size shall be 3 inches by 8 
inches; 

(17) Six triangular bandages; 

(18) Two pairs of 5-1/2 inches bandage 
shears; 

(19) Two sterile bum sheets, minimum size 
of 40 inches by 72 inches; 

(20) A total of 2(KX) cubic centimeters of 
sterile irrigating solution in plastic 
containers in addition to the fluids 
carried for intravenous use; 

(21) One emesis basin; 

(22) One obstetrical kit containing gloves, 
scissors or surgical blades, umbilical 
cord clamps or tapes, dressings, towels, 
perinatal pad, a bulb syringe, and a 
receiving blanket; 

(23) One poison antidote kit containing 
syrup of ipecac, activated charcoal and 
a means of administering the proper 
dosage; 

(24) One each small, regular and large size 
aneroid blood pressure cuff" and adult 
and pediatric stethoscopes. One 
stethoscope with adult and pediatric 
attachments is acceptable; 

(25) One sheet of rubber or heavy plastic, 
minimum size of 36 inches by 72 
inches, or one body bag; 

(26) One four wheeled, elevating cot with a 
minimum three inch thick pad with a 
nonporous cover. The cot must be 
equipped with restraining straps (chest 
and thigh area) of at least two inches in 
width. A crash stable fastener installed 



(27) 



(28) 



per the cot manufecturer's instructions 
and compatible with the model cot 
furnished must secure the specified cot 
to the floor or side wall; 
One additional stretcher with patient 
restraining straps and capable of being 
secured inside the patient compartment; 



Two sets of clean cot linen constructed 
of washable or disposable material in 
addition to a set on the cot (a set equals 
two sheets and one pillowcase); 

(29) Two pillows covered with a nonporous 
material; 

(30) Two blankets constructed of washable 
material; and 

(31) One child restraint device to safely 
transport pediatric patients in the patient 
compartment of the ambulance. 

(b) Category II ambulances for which permits 
are issued shall contain at least the following 
equipment exclusive of personal equipment carried 
by personnel: 

(1) One portable aspirator capable of a 
minimum vacuum of 300 millimeters of 
mercury and a minimum air flow rate 
of 16 liters per minute with rapid 
drawdown time. A minimum of three, 
single use, non-opaque, one piece, rigid 
suction instruments and a suction 
rinsing water bottle must be supplied 
with this unit; 

(2) One each portable squeeze bag 
ventilation unit (bag and mask) in adult 
and child sizes with transparent face 
mask capable of low temperature 
operation (32 degrees F or below) and 
an attachment for oxygen hookup. A 
minimum of two transparent, flexible, 
disposable oxygen supply tubes must be 
supplied with each unit; 

(3) Six nonmetallic, oropharyngeal airways 
sanitarily stored together in separate 
sizes ranging from 55 millimeters 
through 115 millimeters; 

(4) One bite stick either commercially 
manufactured or made of three tongue 
blades taped together and padded; 

(5) One portable oxygen unit consisting of 
the following components: 360 liter (D 
size) or larger oxygen cylinder; yoke 
regulator with cylinder contents gauge 
(2000 pounds per square inch) and 
gravity or non-gravity dependent flow 
gauge (0-12 liters per minute); a 



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PROPOSED RULES 



minimum of three transparent, nasal 
cannulas in adult and child sizes; and a 
minimum of three each, adult and child, 
disposable, transparent, oxygen masks 
with delivery tubes and headband. A 
full spare cylinder (D size) of oxygen 
for this unit shall be furnished and 
stored on the ambulance vehicle; oxy- 
gen tanks must show date of last static 
test; 

(6) Twelve four inch by four inch sterile 
gauze pads individually packaged; 

(7) Six sterile five inch by nine inch absor- 
bent dressings individually wrapped; 

(8) Six rolls of roller gauze; 

(9) Two rolls of adhesive tape; 

(10) Three triangular bandages; 

(11) Two pairs of five and one-half inches 
bandage shears; 

(12) One emesis basin; 

(13) One each small, regular and large size 
aneroid blood pressure cuff" and adult 
and pediatric stethoscopes. One stetho- 
scope with adult and pediatric attach- 
ments is acceptable; 

(14) One four wheeled, elevating cot with a 
minimum three inch thick pad with a 
nonporous cover. The cot must be 
equipped with restraining straps (chest 
and thigh area) of at least two inches in 
width. A crash stable fastener installed 
per the cot manufecturer's instructions 
and compatible with the model cot 
furnished must secure the specified cot 
to the floor or side wall; 

(15) Two sets of clean cot linen constructed 
of washable or disposable material in 
addition to a set on the cot (a set equals 
two sheets and one pillowcase); 

(16) Two pillows covered with a nonporous 
material; 

(17) Two blankets constructed of washable 
material; 

(18) A firm board of minimum size 14 
inches by 32 inches to support the back 
during manual heart compressions; and 

(19) One child restraint device to safely 
transport pediatric patients in the patient 
compartment of the ambulance. 

(c) Category III ambulances for which permits 
are issued must have the following medical equip- 
ment immediately available to be placed on the 
vehicle: 

(1) One portable aspirator capable of a 
minimum vacuum of 300 millimeters of 



mercury and a minimum air flow rate 
of 16 liters per minute with rapid draw- 
down time. A minimum of three, 
single use, non-opaque, one piece, rigid 
suction instruments and a suction rins- 
ing water bottle must be supplied with 
this unit; 

(2) One each portable squeeze bag ventila- 
tion unit (bag and mask) in adult and 
child sizes with transparent face mask 
capable of low temperature operation 
(32 degrees F or below) and an attach- 
ment for oxygen hookup. A minimum 
of two transparent, flexible, disposable 
oxygen supply tubes must be supplied 
with each unit; 

(3) Six nonmetallic, oropharyngeal airways 
sanitarily stored together in separate 
sizes ranging from 55 millimeters 
through 115 millimeters; 

(4) One bite stick either commercially 
manufactured or made of three tongue 
blades taped together and padded; 

(5) One portable oxygen unit consisting of 
the following components: 360 liter (D 
size) or larger oxygen cylinder; yoke 
regulator with cylinder contents gauge 
(2000 pounds per square inch) and 
gravity or non-gravity dependent flow 
gauge (0-12 liters per minute); a mini- 
mum of three transparent, nasal cannu- 
las in adult and child sizes; and a mini- 
mum of three each, adult and child, 
disposable, transparent, oxygen masks 
with delivery tubes and headband. A 
full spare cylinder (D size) of oxygen 
for this unit shall be furnished and 
stored on the ambulance vehicle; oxy- 
gen tanks must show date of last static 
test; 

(6) Twelve four inch by four inch sterile 
gauze pads individually packaged; 

(7) Six sterile five inch by nine inch absor- 
bent dressings individually wrapped; 

(8) Six rolls of roller gauze; 

(9) Two rolls of adhesive tape; 

(10) Three triangular bandages; 

(11) Two pairs of five and one-half inches 
bandage shears; 

(12) One emesis basin; 

(13) Two sterile bum sheets, minimum size 
of 40 inches by 72 inches; 

(14) A total of 2000 cubic centimeters of 
sterile irrigating solution in plastic 
containers in addition to the fluids 



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131 



PROPOSED RULES 



carried for intravenous use; 

(15) One obstetrical kit containing gloves, 
scissors or surgical blades, umbilical 
cord clamps or tapes, dressings, towels, 
perinatal pad, a bulb syringe, and a 
receiving blanket; 

(16) One poison antidote kit containing 
syrup of ipecac, activated charcoal and 
a means of administering the proper 
dosage; 

(17) One each small, regular and large size 
aneroid blood pressure cuff and adult 
and pediatric stethoscopes. One 
stethoscope with adult and pediatric 
attachments is acceptable; 

(18) One four wheeled, elevating cot with a 
minimum three inch thick pad with a 
nonporous cover. The cot must be 
equipped with restraining straps (chest 
and thigh area) of at least two inches in 
width. A crash stable festener installed 
per the cot manufecturer's instructions 
and compatible with the model cot 
furnished must secure the specified cot 
to the floor or side wall. A self 
contained transport incubator with stand 
and capable of being secured in the 
ambulance may be substituted; 

(19) Two sets of clean cot linen constructed 
of washable or disposable material in 
addition to a set on the cot (a set equals 
two sheets and one pillowcase); 

(20) Two pillows covered with a nonporous 
material; 

(21) Two blankets constructed of washable 
material; 

(22) A firm board of minimum size 14 
inches by 32 inches to support the back 
during manual heart compressions; and 

(23) One child restraint device to safely 
transport pediatric patients in the patient 
compartment of the ambulance. 

(d) Category IV ambulances for which permits 
are issued must have the following medical 
equipment immediately available to be placed on 
the aircraft: 

(1) One portable aspirator with rapid 
drawdown time capable of providing a 
minimum vacuum of 3(X) millimeters of 
mercury and a minimum air flow rate 
of 16 liters per minute up to the 
maximum operating altitude of the 
aircraft. A minimum of three, single 
use, non-opaque, one piece, rigid 
suction instruments and a suction 



rinsing water bottle must be supplied 
with this unit; 

(2) One each portable squeeze bag 
ventilation unit (bag and mask) in adult 
and child sizes with transparent face 
mask capable of low temperature 
operation (32 degrees F or below) and 
an attachment for oxygen hookup. A 
minimum of two transparent, disposable 
oxygen supply tubes must be supplied 
with each unit; 

(3) Six nonmetallic, oropharyngeal airways 
sanitarily stored together in separate 
sizes ranging from 55 millimeters 
through 115 millimeters; 

(4) One bite stick either commercially 
manufectured or made of three tongue 
blades taped together and padded; 

(5) Oxygen unit containing a quantity of 
oxygen sufficient to supply an 
appropriate flow rate for the period of 
time it is anticipated oxygen will be 
needed, but not less than ten liters per 
minute for 30 minutes. The oxygen 
shall be carried in two separate 
containers, one of which must be 
portable. The portable oxygen unit 
shall have a yoke regulator with 
cylinder contents gauge, flow gauge, 
and DISS outlets; 

(6) Twelve four inch by four inch sterile 
gauze pads individually packaged; 

(7) Six sterile five inch by nine inch 
absorbent dressings individually 
wrapped; 

(8) Twelve rolls of roller gauze; 

(9) Four rolls of adhesive tape; 

(10) Four sterile nonadhering, nonporous 
dressings for an open chest wound. 
Minimum size shall be 3 inches by 8 
inches; 

(11) Six triangular bandages; 

(12) Two sterile bum sheets, minimum size 
of 40 inches by 72 inches; 

(13) A total of 2000 cubic centimeters of 
sterile irrigating solution in plastic 
containers in addition to the fluids 
carried for intravenous use; 

(14) One emesis basin; 

(15) One IV pressure bag; 

(16) An electronic means of measuring 
blood pressure while in flight; 

(17) One stethoscope and manual blood 
pressure cuff; 

(18) One ECG monitor/ defibrillator; 



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PROPOSED RULES 



(19) One complete kit for endotracheal 
intubation; 

(20) One litter and attachment for securing 
the litter to the airframe inside the 
cabin of the aircraft. The litter must 
allow for elevation of the patient's 
head; 

(21) One blanket constructed of washable 
material; 

(22) Four air sick bags; and 

(23) Four IV hooks. 

(e) The medical director shall decide the 
combination of medical equipment specified in 
Paragraph (d) of this Rule that is carried on a 
mission based on what is in the best interest of 
patient care. 

(f) All rotary wing aircraft permitted as a 
Category IV ambulance must have the following 
flight equipment operational in the aircraft: 

(1) Two 360 channel VHF aircraft 
frequency transceivers; 

(2) One VHF omnidirectional ranging 
(VOR) receiver; 

(3) Attitude indicators; 

(4) One nondirectional beacon (NDB) 
receiver; 

(5) One glide scope receiver; 

(6) One transponder with 4097 code. Mode 
C; 

(7) Turn and slip indicator in the absence 
of three attitude indicators; 

(8) Current FAA approved navigational 
aids and charts for the area of 
operations; 

(9) Radar altimeter; and 

(10) Loran navigational system. 

(g) Any fixed wing aircraft issued a permit as a 
Category IV ambulance must have a current 
"Instrument Flight Rules" certification. 

(h) Category V ambulances for which permits 
are issued shall contain at least the following 
equipment exclusive of personal equipment carried 
by personnel: 

(1) One portable aspirator capable of a 
minimum vacuum of 300 millimeters of 
mercury and a minimum air flow rate 
of 16 liters per minute with rapid 
drawdown time. A minimum of three, 
single use, non-opaque, one piece, rigid 
suction instruments and a suction 
rinsing water bottle must be supplied 
with this unit; 

(2) One each portable squeeze bag 
ventilation unit (bag and mask) in adult 
and child sizes with transparent fece 



mask capable of low temperature 
operation (32 degrees F or below) and 
an attachment for oxygen hookup. A 
minimum of two transparent, flexible, 
disposable oxygen supply tubes must be 
supplied with each unit; 

(3) Six nomnetallic, oropharyngeal airways 
sanitarily stored together in separate 
sizes ranging from 55 millimeters 
through 115 millimeters; 

(4) One bite stick either commercially 
manufactured or made of three tongue 
blades taped together and padded; 

(5) One portable oxygen unit consisting of 
the following components: 360 liter (D 
size) or larger oxygen cylinder; yoke 
regulator with cylinder contents gauge 
(2000 pounds per square inch) and 
gravity or non-gravity dependent flow 
gauge (0-12 liters per minute); a 
minimum of three transparent, nasal 
cannulas in adult and child sizes; and a 
minimum of three each, adult and child, 
disposable, transparent, oxygen masks 
with delivery tubes and headband. A 
full spare cylinder (D size) of oxygen 
for this unit shall be furnished and 
stored on the ambulance vehicle; 
oxygen tanks must show date of last 
static test; 

(6) One small, one medium, and one large 
size adult extrication collar and one 
pediatric size extrication collar; 

(7) One rigid short backboard. The 
minimum size must be 14 inches wide 
by 32 inches long. A stabilization 
device which is of the design to allow 
horizontal flexibility and vertical 
rigidity, equipped with chest and leg 
straps and accessories for stabilization 
of the head and neck may be substituted 
for the rigid short backboard; 

(8) One floatable rigid long backboard a 
minimum of 16 inches wide by 72 
inches long with two straps for patient 
stabilization and other accessories for 
stabilization of the head and neck; 

(9) Two sets of rigid padded board splints 
in the following sizes; three inches wide 
by 15 inches long, three inches wide by 
three feet long, and three inches wide 
by four and one-half feet long. Other 
splints, in kit form, of inflatable design 
or rigid laminated and high density 
polyurethane foam construction are 



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133 



PROPOSED RULES 



acceptable. A kit must contain at least 
two full leg and two full arm splints; 

(10) One child and one adult size lower 
extremity traction splint with appropri- 
ate attachments; 

(11) Two sandbags constructed of a nonpo- 
rous material for immobilization pur- 
poses. Minimum size must be two 
inches by four inches by 12 inches. A 
head immobilizer may be substituted for 
sandbags; 

(12) Twelve four inch by four inch sterile 
gauze pads individually packaged; 

(13) Six sterile five inch by nine inch absor- 
bent dressings individually wrapped; 

(14) Twelve rolls of roller gauze; 

(15) Four rolls of adhesive tape; 

(16) Four sterile nonadhering, nonporous 
dressings for an open chest wound. 
Minimum size shall be three inches by 
eight inches; 

(17) Six triangular bandages; 

(18) Two pairs of five and one-half inches 
bandage shears; 

(19) Two sterile bum sheets, minimum size 
of 40 inches by 72 inches; 

(20) A total of 2000 cubic centimeters of 
sterile irrigating solution in plastic 
containers in addition to the fluids 
carried for intravenous use; 

(21) One emesis basin; 

(22) One obstetrical kit containing gloves, 
scissors or surgical blades, umbilical 
cord clamps or tapes, dressings, towels, 
perinatal pad, a bulb syringe, and a 
receiving blanket; 

(23) One poison antidote kit containing 
syrup of ipecac, activated charcoal and 
a means of administering the proper 
dosage; 

(24) One each small, regular and large size 
aneroid blood pressure cuff" and adult 
and pediatric stethoscopes. One stetho- 
scope with adult and pediatric attach- 
ments is acceptable; 

(25) One sheet of rubber or heavy plastic, 
minimum size of 36 inches by 72 inch- 
es, or one body bag; 

(26) One additional floatable litter with 
patient restraining straps and capable of 
being secured to the watercraft; and 

(27) Two blankets constructed of washable 
material . 

Statutory Authority G.S. 131E-1 57(a). 



SUBCHAPTER 3M - MINIMUM 

STANDARDS FOR MOBILE 

INTENSIVE CARE UNIT 

SECTION ,0200 - EQUIPMENT 

.0202 MOBILE INTENSIVE CARE 
UNIT (MICU) I 

In addition to equipment required in Rule .0201 
of this Section, an ambulance identified as a 
Mobile Intensive Care Unit I shall carry the 
following equipment and medical supplies, in 
amounts approved by the medical director: concur ■ 
rent with the modioal protocola in off^ect for the 
Advanced Life Support program with which the 
ambulance provider is affiliated. — A copy of the 
current medical protocola may be obtained from 
the sponsor hospital of the advanced life support 
program: 

(1) two-way radio capable of continuous 
voice communications with the sponsor 
hospital; 

f3) dextrose 5 percent in water (D5W); 

0) normal saline solution; 

f4) lactated ringers solution; 

(2) f5) angiocath needles; 

(3) i€) vacutainers; 

(4) f7) I.V. administration sets appropriate to 
solution containers and needles; 

(5) (8) esophageal obturator airway or c s oph 
ageal gastric tube airway; blind insertion 
airway device; 

(6) (9) antishock trousers. 

^40) epinephrine — 1:1000 — te — tfeat — systemic 

allergic reactions. 
A MICU I may also, upon approval of the medical 
director, carry the intravenous solution(s) and 
medications(s) authorized by 21 NCAC 32H 
.0403. The amounts and concentrations shall be 
concurrent with the medical protocols approved by 
the Office of Emergency Medical Services in effect 
for the Advanced Life Support program with 
which the MICU I is affiliated. A copy of the 
current medical protocols may be obtained from 
the sponsor hospital of the advanced life support 
program . One copy of 21 NCAC 32H may be 
obtained at no cost from the Office of Emergency 
Medical Services, 701 Barbour Drive, P.O. Box 
29530. Raleigh, NC 27626-0530. 

Statutory Authority G.S. 131E-1 57(a). 

.0203 MOBILE INTENSIVE CARE 
UNIT III 

An ambulance identified as a Mobile Intensive 



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PROPOSED RULES 



Care Unit III shall carry the equipment and 
supplies required in Rule .0201 of this Section and 
the following equipment iist and medical supplies 
in amounts approved by the medical director: t^s 
vwll oo the drugo contained on the EMT paramedic 
Minimum — Drug — fctst — approved — ^i" — tbe — North 
Carolina Board of Medical Examiners for u s e by 
EMT paramedics in amounts and concentrations 
concurrent with the medical protocols in cfTcct for 
the Advanced Life Support program with which 
the ambulance provider is affiliated. — A copy of 
the current medical protocols may be obtained 
from the sponsor hospital of the advanced life 
support program: 

(1) two-way radio capable of continuous 
voice communications with the sponsor 
hospital; 

(2) angiocath needles; 

(3) vacutainers; 

(4) I.V. administration sets appropriate to 
solution containers and needles; 

(5) esophageal obturator airway e* 

esophageal — gastric — tube airway; blind 
insertion airway devices; 

(6) antishock trousers; 

(7) sterile syringes; 

. (8) endotracheal tubes; 
(9) laryngoscope (handle and blade); 

(10) cardiac monitor and accessories; 

(11) defibrillator. 

A vehicle identified as a Mobile Intensive Care 
Unit III may also as an option ,upon a pproval of 
the program medical director carry additional 
drugs — contained — en — the — EMT paramedic — Drug 
Formulary approved by the North Carolina Board 
of Medical E>Mminers as addressed in the medical 
protocols in effect for the Advanced Life Support 
program with which the ambulance provider is 
affiliated. the intravenous solution(s) and 
medieations(s) authorized by 21 NCAC 32H 
.0402. The amounts and concentrations shall be 
concurrent with the medical protocols approved by 
the Office of Emergency Medical Services in effect 
for the Advanced Life Support program with 
which the MICU III is affiliated. A copy of the 
current medical protocols may be obtained from 
the sponsor hospital of the advanced life su pport 
program . One copy of 21 NCAC 32H may be 
obtained at no cost from the Office of Emergency 
Medical Services. 701 Barbour Drive, P.O. Box 
29530. Raleigh. NC 27626-0530. 
Copies of the EMT paramedic Minimum Drug List 
and the EMT paramedic Drug Formulary may be 
obtained from the Office of Emergency Medical 
Services, — 704 — Barbour Drive, — Raleigh, — North 



Carolina 27603. 

Statutory Authority G.S. 131E-1 57(a). 

.0205 MOBILE INTENSIVE CARE 
UNIT II 

An ambulance identified as a Mobile Intensive 
Care Unit II shall carry the equipment and supplies 
required in Rule .0201 of this Section and the 
following equipment fet and medical supplies in 
amounts approved by the medical director: -r-as 
well as the drugs contained on the EMT advanced 
intermediate Minimum Drug List approved by the 
North Carolina Board of Medical Examiners for 
use by EMT advanced intermediates in amounts 
and concentrations concurrent with the medical 
protocols in effect for the Advanced Life Support 
program with which the ambulance provider is 
affiliated. A copy of the current medical protocols 
may be obtained from the spon s or hospital of the 
advanced life support program: 

(1) two-way radio capable of continuous 
voice communications with the sponsor 
hospital; 

(2) angiocath needles; 

(3) vacutainers; 

(4) I.V. administration sets appropriate to 
solution containers and needles; 

(5) esophageal obturator airway »f 

esophageal — gastric — tebe — airway; blind 
insertion airway devices; 

(6) antishock trousers; 

(7) sterile syringes; 

(8) endotracheal tubes; 

(9) laryngoscope (handle and blade); 

(10) cardiac monitor and accessories; 

(11) defibrillator. 

A vehicle identified as a Mobile Intensive Care 
Unit II may also as an option .upon the approval 
of the program medical director carry additional 



-tht 



EMT advanced 



drugs contained &f 

intermediate Drug Formulary — approved by th e 
North Carolina Board of Medical Examiners as 
addressed in the medical protocols in effect for the 
Advanced Life Support program with which the 
ambulance provider is affiliated. 
Copies — ef — the — EMT advanced — intermediat e 
Minimum — Drug — List — and — the — EMT advanced 
intermediate Drug Formulary — may be obtained 
from the Office of Emergency Medical Services, 
Wi — Barbour — Drive, — Raleigh, — North — Carolina 

27603 . the intravenous solution(s) and 

medications(s) authorized by 21 NCAC 32H 
.0406. The amounts and concentrations shall be 
concurrent with the medical protocols approved by 



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135 



PROPOSED RULES 



the Office of Emergency Medical Services in effect 
for the Advanced Life Support program with 
which the MICU II is affiliated. A copy of the 
current medical protocols may be obtained from 
the sponsor hospital of the advanced life support 
program . One copy of 2J. NCAC 32H may be 
obtained at no cost from the Office of Emergency 
Medical Services, 701 Barbour Drive, P.O. Box 
29530. Raleigh. NC 27626-0530. 
Copies of the EMT paramedic Minimum Drug List 
and the EMT paramedic Drug Formulary may be 
obtained from the Office of Emergency Medical 
Services, — 704 — Barbour — Drive, — Raleigh, — North 
Carolina 27603. 

Statutory Authority G.S. 131E-157(a). 

.0207 MOBILE INTENSIVE CARE 
UNIT IV 

An ambulance identified as a Mobile Intensive 
Care Unit IV shall carry, in addition to the 
equipment referenced in Rule .0201 of this 
Section, an automatic external or semi automatic 
defibrillator (AED) . A MICU IV may also, upon 
approval of the medical director, carry the 
medications(s) authorized by 21 NCAC 32H 
.0407. The amounts and concentrations shall be 
concurrent with the medical protocols a pproved by 
the Office of Emergency Medical Services in effect 
for the Advanced Life Support program with 
which the MICU IV is affiliated. A copy of the 
current medical protocols may be obtained from 
the sponsor hospital of the advanced life support 
program . One copy of 21 NCAC 32H may be 
obtained at no cost from the Office of Emergency 
Medical Services, 701 Barbour Drive, RO. Box 
29530. Raleigh. NC 27626-0530. 

Statutory Authority G.S. 131E-1 57(a). 



ISotice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rules cited as 10 NCAC 411 
.0101. .0103, .0304- .0306, .0308, .0312, .0401, 
.0406, .0410; repeal rules cited as 10 NCAC 411 
.0402 - .0405, .0407 - .0409, .0411; and adopt 
rules cited as 10 NCAC 43L .0206 - .0209. 

1 he proposed effective date of this action is 
September 1, 1994. 



1 he public hearing will be conducted at 10:00 
a.m. on June 1, 1994 at the Albemarle Building, 
Room 943-2, 325 North Salisbury Street, Raleigh, 
North Carolina 27603. 

Ixeason for Proposed Action: 

10 NCAC 411 .0101, .0305, .0308, .0401, .0410 

- The proposed amendments to these Rules are the 
result of changes in legislation. In addition, there 
are some minor changes in punctuation and sen- 
tence structure designed to improve clarity. 

10 NCAC 411 . 0103, . 0312 - The proposed amend- 
ment of these Rules is the result of a request by the 
Children 's Services Policy Review Committee. 
10 NCAC 411 . 0304 - The proposed amendment of 
10 NCAC 411 .0304 is partially the result of the 
need for clarification of procedures in investigating 
abuse, neglect, or dependency in an institutional 
setting. The proposed amendment clarifies the fact 
that, in addition to the procedures required for all 
investigations, the institutional administrator 
should also be notified of the investigation. This 
notification should occur befi)re the child is seen 
unless doing so compromises the safety of the 
child. Other proposed amendment is a result of 
legislative action. 

10 NCAC 411 . 0306 - The proposed amendment of 
10 NCAC 411 .0306 is partially the result of an 
inaccuracy which had been incorporated into rule. 
The proposed amendment clarifies the appropriate 
use of the risk assessment tool for substantiated 
dependency cases. The proposed amendment in 
Subparagraph (a)(3) requires timely written notifi- 
cation of the case decision to the perpetrator, 
parent/caretaker, and custodial agencies. The 
time frame is the same for the written notification 
to the reporter (5 working days from the date of 
the case decision). The other proposed amendment 
to this Rule, contained in (e), incorporates report- 
ing requirements now contained in legislation. 
10 NCAC 411 . 0402 - . 0405, . 0407 - . 0409, . 0411 

- The proposed repeal of these Rules is the result 
of changes in legislation. 

10 NCAC 411 . 0406 - The proposed amendment of 
10 NCAC 411 . 0406 is needed because of the 
deletion of 411 . 0404 which contained the specific 
training requirements for both the chair and the 
members of the Community Child Protection Team. 
10 NCAC 43L .0206 - .0209 - Rules establishing 
mandated and optional services need to be adopted 
so that it is clear what services county DSSs are 
required to provide with SSBG funds and which 
ones they have an option to provide. Rules were 



136 



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PROPOSED RULES 



inadvertently repealed in 1990. 

Cyomment Procedures: Comments may be pre- 
sented in writing at any time before or at the 
public hearing or orally at the hearing. Time 
limits for oral remarks may be imposed by the 
Commission Chairman. Any person may request 
copies of these Rules by calling or writing to 
Shamese Ransome, Division of Social Services, 
325 N. Salisbury Street, Raleigh, NC 27603, tel: 
(919) 733-3055. 

CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 411 - PROTECTIVE 
SERVICES 

SECTION .0100 - GENERAL 

.0101 PURPOSE 

Rules in this Subchapter govern the provision of 
protective services for children with funds adminis- 
tered by the Division of Social Services. Included 
are requirements for the management of the central 
registry of neglect^ and abuse,^ and dependency 
cases, and requirements which must be met by 
county departments of social services in carrying 
out their responsibilities for the protection of 
children under Chapter 7A of the General Statutes. 

Statutory Authority G.S. 7A-517; 7A-543 through 
7A-548; 7A-552; 143B-153. 

.0103 REPORTS OF NEGLECT, ABUSE OR 
DEPENDENCY 

Reports of neglect, abuse^^ or dependency all eg 
e dly OQUs e d by staff of on e county departm e nt of 
Booiol Borvioos ohall b e r e f e rr e d to anoth e r d e part 
mont of oooial o e rvio e s for inv e stigation, shall be 
referred to another county departmen t of social 
services for investigation when the alleged perpe- 
trator is an employee of the county department of 
social services, a foster parent supervised by that 
county department of social services, a member of 
the Board of Social Services for that county, or a 
caretaker in a sole-source contract group home or 
agency-operated day care facility. 

When in the professional judgement of the 
county director the agency would be perceived as 
having a conflict of interest in the conduct of other 
child protective service investigations, the director 
shall have discretionary a uthority to request that 
another county conduct the investigations. 



Statutory Authority G.S. 143B-153. 

SECTION .0300 - CHILD PROTECTIVE 
SERVICES: GENERAL 

.0304 RECEIVING INFORMATION: 
INITIATING PROMPT 
INVESTIGATIONS OF REPORTS 

(a) The county director shall receive and initiate 
an investigation on all reports of suspected child 
abuse, neglect^^ or dependency, including anony- 
mous reports: 

(b) The county director shall make a diligent 
effort to obtain the following information from the 
person making the report: 

^i^ the name and addre ss of the parent, 

guardian or caretaker and the name of 

the alleged perpetrator; 
(3) the name and actual or approximate age 

of the child or children; 
f^) the nature and extent of the alleged 

neglect, abuse or dependency; 
{4r) the present whereabouts of the child or 

children if not at the home address; 
f§) other information that the reporter has 



which might be helpful in establishing 
the need for protective services, inolud 
ing the name, address and phone num 
ber of other individuals who may have 
information about the condition of the 
child or children; 

(6) the name and address of the individual 

making the report. 

(1) The name, address, and actual or ap- 
proximate age of the iuvenile(s'); 

(2) The names and ages of other juveniles 
residing in the home; 

(3) The name and address of the juvenile's 
parent, guardian, or caretaker; 

(4) The name and address of the alleged 
perpetrator; 

(5) The present whereabouts of the juve- 
nile(s) if not at the home address; 

(6) The nature and extent of any injury or 
condition resulting from abuse, neglect. 
or dependency; 

(7) Other information that the reporter has 
which might be helpful in establishing 
the need for protective services, includ- 
ing the names, addresses, and telephone 
numbers of other individuals who may 
have information about the condition of 
the juvenile(s); 

(8) The name, address, and telephone 
number of the person making the re- 



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137 



PROPOSED RULES 



port. 

(c) When a county director receives a report of 
suspected abuse or of criminal maltreatment of a 
juvenile by a person other than the juvenile's 
parent, guardian, custodian, or caretaker , and 
dccidca that a the director shall notify the appro- 
priate law enforcement agency should be notified, 
in accordance with G.S. 7A-548. The the county 
director shall provide the law enforcement agency 
with the any information obtained from the person 
making the report as outlined in Subparagraphs 
(b)(1) through {bji§j (b)(7) of this Rule. The 
name^ and address address, and telephone number 
of the individual making the report, included as 
Subparagraph (b)(6) (b)(8) of this Rule, may be 
shared with law enforcement when this information 
is necessary for law enforcement to perform their 
duties as related to the report. 

(d) The county director shall promptly initiate 
an investigation of suspected abuse, neglect or 
dependency^ and in all cases shall initiate an 
investigation of suspected abuse^ within 24 hours 
after receiving a report and shall initiate an investi- 
gation of suspected neglect or dependency within 
72 hours after receiving a report. Initiation of an 
investigation is defined as having face-to-face 
contact with the alleged victim child or children. 
If there is not such face-to-face contact within the 
prescribed time period, the case record shall 
contain documentation to explain why such contact 
was not made and what other steps were taken to 
assess the risk of harm to the child or children. 

(e) When the director is unable to initiate the 
investigation within the prescribed time period, as 
indicated in Paragraph (d) of this Rule, because the 
alleged victim child or children cannot be located, 
the director shall make diligent efforts to locate the 
alleged victim child or children until such efforts 
are successful or until the director concludes that 
the child or children cannot be located. Diligent 
efforts shall include, but not be limited to, visits to 
the child's or children's address at different times 
of the day and on different days. All efforts to 
locate the child or children shall be documented in 
the case record. 

(f) When abuse, neglect^ or dependency is 
alleged to have occurred in an institution, in 
addition to obtaining information as described in 
(b) of this Rule the procedures described in Para- 
graphs (a) through (e) of this Rule , the county 
director shall initiate the investigation by contact 
ifig notify the individual who is administratively 
responsible for on-site operation of the institution 
afld in order to solicit the cooperation of the 
administration of the institution. Notification shall 



occur within the time frames required in Paragraph 
(d) of this Rule, and prior to contact with the 
alleged victim juvenile(s) if the director determines 
that such notice would not place the alleged vic- 
tim(s) at risk of further harm. 

(g) The county director must have an internal 
two^level review, including at a minimum the 
worker and the worker's supervisor, prior to 
making a decision that information received does 
not constitute a report of abuse, neglect^ or depen- 
dency. 

(h) The county director must establish a process 
by which the person providing this information 
may obtain a review of the agency's decision not 
to accept the information as a report of abuse, 
neglect^ or dependency. The process shall include: 

(1) informing the person providing the 
information that the agency will not 
conduct an investigation, the basis for 
that decision, and their right to and the 
procedures for obtaining such a review; 
and 

(2) designating the persons by whom and 
the manner in which such reviews will 
be conducted. 

Statutory Authority G. S. 7A-543; 7A-544; 7A-547; 
7A-548; 143B-153. 

.0305 CONDUCTING A THOROUGH 
EWESTIGATION 

(a) The county director shall make a thorough 
investigation to assess: 

(1) whether the specific environment in 
which the child or children is found 
meets the child's or children's need for 
care and protection; and 

(2) facts regarding the existence of abuse, 
neglect^ or dependency; and 

(3) the nature and extent of any injury or 
condition resulting from abuse^ and 
neglect neglect, or dependency : and 

(4) the risk of harm to and need for protec- 
tion of the child or children. 

(b) When the county director receives a report 
of suspected abuse, neglect^ or dependency, the 
county director shall check the county agency's 
records and the North Carolina Central Registry of 
Child Abuse and Neglect Reports child abuse, 
neglect, and dependency reports to ascertain if any 
previous reports of abuse or neglect have been 
made concerning the alleged victim child or 
children. 

(c) Face-to-face contact with other children 
residing in the home shall be made as soon as 



138 



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PROPOSED RULES 



possible, but no later than seven working days 
after the initiation of the investigation, unless there 
is documentation in the case record to explain why 
such contact was not made. 

(d) There shall be a face-to-face interview with 
any parent or caretaker with whom the victim child 
or children reside, unless there is documentation in 
the case record to explain why such an interview 
was not conducted. The parent or caretaker shall 
be interviewed on the same day as the victim child 
or children unless there is documentation in the 
case record to explain why such interviews were 
not conducted. 

(e) The investigation shall include a visit to the 
place where the child or children reside. 

(f) There shall be a face-to-face interview with 
the alleged perpetrator or perpetrators unless there 
is documentation to explain why such an interview 
was not conducted. 

(g) Any persons identified at the time the report 
was accepted for investigation as having informa- 
tion concerning the condition of the child or 
children shall be interviewed in order to obtain any 
information relevant to the investigation unless 
there is documentation in the case record to ex- 
plain why such interviews were not conducted. 

(h) When additional information is necessary to 
complete a thorough investigation, information 
from the following sources shall be obtained and 
utilized: 

(1) Professionals or staff at an out-of-home 
care setting having relevant knowledge 
pertaining to the alleged abuse, neglect^ 
or dependency; 

(2) Other persons living in the household 
or attending or residing in the 
out-of-home care setting; 

(3) Any other source having relevant 
knowledge pertaining to the alleged 
abuse, neglect^^ or dependency; 

(4) Records-; 1 i.e., school, medical, mental 
health, or incident reports in an 
out-of-home care setting. 

(i) The county director shall exercise discretion 
in the selection of collateral sources in order to 
protect the family's or out-of-home care setting's 
right to privacy and the confidentiality of the 
report. 

(j) Conducting a thorough investigation as 
outlined in Paragraph (a) of this Rule when the 
alleged abuse, neglect^ or dependency occurred in 
an institution shall include the following: 

(1) A discussion of the allegation with the 
individual who has on-site 
administrative responsibility for the 



institution; 

(2) A discussion of the procedure to be 
followed during the investigation; 

(3) The utilization of resources within and 
without the institution as needed and 
appropriate; 

(4) A discussion of the findings with the 
Administrator of the institution which 
shall be confirmed in writing by the 
county director and shall be held 
confidential by all parties as outlined in 
10 NCAC 411 .0313, of this 
Subchapter. 



Statutory Authority G. S. 
143B-153. 



7A-543; 7A-544; 



.0306 WHEN ABUSE, NEGLECT OR 
DEPENDENCY IS FOUND 

(a) When a thorough investigation reveals the 
presence of abuse, neglect^ or dependency, the 
county director shall notify the following persons 
or agencies of the case finding: 

(1) any parent or caretaker who was 
alleged to have abused or neglected the 
child or children; 

(2) any parent or other individual with 
whom the child or children resided at 
the time the county director initiated the 
investigation; and 

(3) any agency with whom the court has 
vested legal custody. 

Notification shall be in writing, and within five 
working days of the case decision. If the county 
director is unable to contact a parent, caretaker, 
and/or perpetrator, documentation of reasonable 
efforts to locate that person must be included m 
the case record. 

(b) When abus e, neglect or dependency or 
neglect is found, the county director shall 
determine whether the case is one for which a 
structured risk assessment is required. The 
director shall base this determination on the 
instructions to the risk assessment tool provided by 
the Department of Human Resources, Division of 
Social Services. For all cases that require the 
completion of a structured risk assessment, the 
director shall complete such an assessment using 
the risk assessment tool provided by the 
Department of Human Resources, Division of 
Social Services. This risk assessment shall be 
completed within seven working days following a 
case finding of abus e, neglect or dependency; or 
neglect and the findings of the risk assessment 
shall be used in evaluating the need for services 



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139 



PROPOSED RULES 



and in developing an intervention plan. The 
director shall evaluate the appropriateness of using 
the formal risk assessment process in individual 
substantiated dependency cases. Examples of 
substantiated dependency cases that are appropriate 
for formal risk assessment are cases involving both 
neglect and dependency, and cases involving 
dependent children who are being considered for 
reunification with their family. 

(c) In all cases in which abuse, neglect^ or 
dependency is found, the county director shall 
develop, implement, and oversee an intervention 
plan to ensure that there is adequate care for the 
victim child or children. The intervention plan 
shall: 

(1) be based on the findings of the 
structured risk assessment when such a 
risk assessment was determined to be 
required according to the instructions 
provided by the Department of Human 
Resources, Division of Social Services; 
and 

(2) contain goals representing the desired 
outcome toward which all case 
activities shall be directed; and 

(3) contain objectives that: 

(A) describe specific desired outcomes, 

(B) are measurable, 

(C) identify necessary behavior changes, 

(D) are based on an assessment of the 
specific needs of the child or children 
and family, 

(E) are time-limited, and 

(F) are mutually accepted by the county 
director and the client; 

(4) specify all the activities needed to 
achieve each stated objective; 

(5) have clearly stated consequences that 
will result from either successfully 
following the plan or not meeting the 
goals and objectives specified in the 
plan; and 

(6) shall include petitioning for the removal 
of the child or children from the home 
and placing the child or children in 
appropriate care when protection cannot 
be initiated or continued in the child's 
or children's own home. 

(d) The risk assessment tool referred to in 
Paragraph (b) of this Rule is to be used in those 
cases in which abus e, neglect or dopcndcncy or 
neglect is found and which meet the criteria 
presented in the instructions to the risk assessment 
tool provided by the Department of Human 
Resources, Division of Social Services. For those 



cases that require the completion of a structured 
risk assessment, the risk assessment tool shall be 
completed at the following points in the case: 

(1) within seven working days following a 
case finding of abuse, neglect^ or 
dependency, and prior to the 
development of the intervention plan 
and prior to the provision of treatment 
or supportive services; and 

(2) as part of the six-month review and the 
annual review, if the case remains open 
for services; and 

(3) when the county director is considering 
taking court action in relation to the 
case; and 

(4) when the county director is considering 
closing the case for services; and if the 
director decides to close the case, the 
case must be closed within 30 days 
following completion of the risk 
assessment; and 

(5) at other times, at the county director's 
discretion, when conducting a 
structured risk assessment would help 
the director in making decisions 
concerning an open child protective 
services case. 

(e) When an investigation leads a county 
director to find evidence that a child has may have 

been abused-; the county director shall 

immodiatoly, but in all coses within throe working 
days of finding the evidence, make a written report 
to the prosecutor, or may have been physically 
harmed in violation of a criminal statute by a 
person other than the child's parent, guardian, 
custodian, or caretaker, the county director shall 
follow all procedures outlined in G.S. 7A-548 in 
making reports to the prosecutor and appropriate 
law enforcement agencies. The report shall 
include: 

(1) the name and address of the child, of 
the parents or caretakers with whom the 
child lives, and of the alleged 
perpetrator when this person is different 
from the parents or caretaker; 

(2) whether the abuse was physical, sexual 
or emotional; 

(3) the dates that the investigation was 
initiated and that the evidence of abuse 
was found; 

(4) whether law enforcement has been 
notified and the date of the notification; 

(5) what evidence of abuse was found; 

(6) what plan to protect the child has been 
developed and what is being done to 



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PROPOSED RULES 



implement it. 
(f) When a thorough investigation reveals the 
presence of abuse, neglect^ or dependency in an 
institution, the county director shall complete the 
following steps: 

(1) the child's or children's legal custodian 
shall be informed; 

(2) an intervention plan for the care and 
protection of the child or children shall 
be developed in cooperation with the 
institution and the legal custodian; and 

(3) when abuse is found, a written report 
shall be made to the prosecutor in the 
county where the institution is located. 



Statutory Authority 
143B-153. 



as. 7A-544; 7A-548; 



.0308 NOTIFICATION OF REPORTER; 
REVIEW BY THE PROSECUTOR 

(a) If a petition is not filed within five worlcing 
days of the receipt of a report of abu s e, neglect or 
dependency the county director shall give written 
notice of his decision not to file a petition to the 
person making the report, unless the person docs 
not give his name and mailing addre s s, or the 
fKirson waives his right to the notification, and 
these — circumstances — are — documented — m — ^he 
protective services case record. 
The — written — notice — must — communicate that — a 
petition has — net — been — filed — and — set — forth — the 
following information and rights of the per s on 
molcing the report: 

{43 There is no finding of abuse, neglect or 

dependency; or the county department 
of social services is talcing action to 
protect — the — welfare — of the — child — ©r 
children and what specific action it is 
taking; and 

^3) The reporter has a right to request a 

review of the deci s ion not to file a 
petition; and 

f3) The requ e st for review must be made to 

the prosecutor, whose addre ss s hall be 

included, within five working days after 

the — reporter — receive s — the — county 

director's decision. 

(a) Within five working days after receipt of the 

report of abuse, neglect, or dependency, the 

director shall give written notice to the person 

making the report, unless specifically requested not 

to do sOj as to whether the report was accepted for 

investigation and whether the report was referred 

to the a ppropriate State or local law enforcement 

agency. Within five working days after 



completion of the protective services investigation. 
the director shall give subsequent written notice to 
any identified person or persons making the report, 
unless specifically requested not to do so^ This 
second notice shall contain the following 
information: 

(1) whether or not there is a finding of 

abuse, neglect, or dependency; 
£2) whether the county department of social 

services is taking action to protect the 

juvenile, and if so, what action it ]s 

taking; 

(3) whether or not the agency has filed a 
petition; and 

(4) notification of the reporter's right to 
request a review by the prosecutor if 
the reporter is not satisfied with the 
director's decision not to file a petition. 
The reporter shall be informed that the 
request must be made within five 
working days of the notice and must 
include the prosecutor's address. 

(b) When the county director receives a notice 
from the prosecutor that a review will be held 
regarding not filing a petition, he shall send 
immediately, but in all cases within three working 
days of the receipt of the notice, a copy of the 
investigation report to the prosecutor. 

(c) Within 20 days after the reporter is notified 
of the right to a review, the prosecutor shall 
review the director's decision. Upon completion 
of the review specified in G.S. 7A-547, the 
prosecutor may: 

(1) affirm the decision of the director; 

(2) request that the appropriate law 
enforcement agency investigate the 
allegations; or 

(3) direct the director to file a petition in 
the matter. 



Statutory Authority 
1438- 153. 



G.S. 7A-544; 7A-547; 



.0312 CASE RECORDS FOR PROTECTIVE 
SERVICES 



(a) The county director shall maintain a separate 
case record or separate section in a case record on 
a child for whom protective services arc initiated 
or who i s placed in the custody of the county 
department of social services by the court. — The 
ease — record — documentation — s hall — be — kept 
confidential. 

{b^ — The protective services case record shall 
document a thorough investigation. — In addition, 
the protective s ervices ca s e record s hall include 



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1A1 



PROPOSED RULES 



but not be limited to: 

ft) The specific objectives of the oorvioo 

ptefi when abuse, neglect ef 

dependency is found; 

f3) Services provided and the efforts of the 

caretakers to use the acrvieea and of the 
agency to deliver the services; 

{^) Sfxtcific — aed — behaviomlly — oriented 

summary of interviews with earctokoro, 
other agencies and other individuals 
when — the — interview — relates — te — the 
s ervice plan to protect the ehild; 

^4) An evaluation within every six months 

of the objectives of the sorvioe plan for 
the child and the ability of the parcnta 
to care for the child; 

f§) When filing a petition for custody, a 

summary of the reasons to seek custody 
of the child; 

{6) When the child is placed outside his 

home, — the — plans — fef — reuniting — the 
parents and child; 

f7) Professional — opinions — are — te — be 

s eparated from behavior — s pecific 

documentation and to be clearly labeled 
as opinions; 

{8) County copy of the Child Abuse and 

Neglect — Report, — Report — te — Central 
Registry /CPS Application; 

(^ Copies of reports to the court, court 

orders, — reports — te — the — prosecutor, 
contacts with law enforcement agencies 
aed — other — reports — related — te — the 
provision of protective services. 

(a) The county director shall maintain a separate 
case record or a separate section in a case record 
on a child for whom protective services are 
initiated or who is placed in the custody of the 
county department of social services by the court. 
The case record documentation shall be kept 
confidential. 

(b) The protective services case record shall 
document a thorough investigation. In addition, 
when applicable, the protective services case 
record shall include, but not be limited to: 

(1) Summary documentation of the results 
of the check of the Central Registry of 
abused, neglected, and dependent 
children whenever a report is accepted 
for investigation. 

(2) Documentation of any protection plan 
that was developed to ensure the child's 
safety during the course of the 
investigation. 

(3) Documentation of the case decision, the 



basis for the case decision, and the 
names of those participating in the 
decision. 
(4) Documentation of 

parents. caretakers. 

perpetrator, or others specified in Rules 

.0306 and .0308 of this Section 



£5} 



16} 



m 



£8} 



notifications to 
the alleged 



regarding the case decision. 
Documentation of contacts with 



and 



services provided to the family, current 
within 10 working days of service 
delivery. Documentation may be taped 
for transcription, typed or legibly 
handwritten. and shall include 
understandable, significant information 
about the family's response to and use 
of services, as well as any change in 
the assessment of risk to the children. 
Copies of the Family Risk Assessment 
Factor Worksheet completed in 
accordance with the time frames 
specified in Rule .0306 of this Section. 
The intervention plan developed at the 
beginning of the treatment phase, with 
any subsequent revisions to the plan. 
The intervention plan shall incorporate 
all items specified in Rule .0306 of this 
Section. 

of 



Documentation 
intervention plan. 



19} 



lA} 



reviews of the 
current within three 
months, which reflect an assessment of 
the plan's effectiveness, the family's 
use of services, and the need for 
continued agency involvement. 
Copies of the following: 
Intake/Screening Form specified in 
policy, or its equivalent, for all 
reports concerning the family whether 
these reports have been received 
while a case was active or while a 
case was closed; 



IB] 



(10) 



\ 

lAl 

m 



Notices to the reporter; 

Requests made of other county 

departments of social services for 

information relating to prior contacts 

by that agency with the family, when 

applicable; 

DSS 5104, Application/Report to the 

Central Registry. 

Copies of the following reports or 

documents, when applicable: 
Petitions relating to the legal or 
physical custody of children while 
receiving child protective services; 
Reports to the court; 



142 



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PROPOSED RULES 



(C) Reports or notifications to 
prosecutors; 

(D) Reports to law enforcement agencies: 

(E) Child Medical Evaluations and Child 
Mental Health Evaluation requests, 
consents, and reports; 

£F} Any other medical, psychological, or 

psychiatric reports; 
(G) Notifications to licensing agencies; 

and 
(H) Any other reports, notifications, or 
documents related to the provision of 
child protective services. 
(\\) Summaries of the following 
information, when not otherwise 
documented in the case record: 

(A) At the time treatment services begin, 
a summary of the reasons services are 
being provided: 

(B) When filing a petition for custody, the 
reasons custody is being sought: and 

(C) At the time treatment services are 
terminated, a summary of the basis 
for the decision. 

Statutory Authority G.S. 7A-544; 7A-547; 7A-675; 
143B-153. 

SECTION .0400 - COMMUNITY CHILD 
PROTECTION TEAMS 

.0401 NATURE AND PURPOSE OF TEAM 

fa) — The community child protection team is a 
group comprised — of community — rcprcacntativc a 
meeting together on a regular ba s i s to promote the 
development of a community wide approach to the 
problem of child abuse, neglect and dependency. 
The community child protection team is established 
by the director of the county department of social 
services. 

(a) Community Child Protection Teams are 
established in every county in the state. Team 
membership consists of representatives of public 
and nonpublic agencies in the community that 
provide services to children and their families and 
other individuals who represent the community. 
These community representatives meet together on 
a regular basis: 

(1) to identify gaps and deficiencies in 
community resources which have 
impact on the incidence of abuse, 
neglect, or dependency: 

(2) to advocate for system improvements 
and needed resources where gaps and 
deficiencies exist in the child protection 



system: 
(3) to promote collaboration between 
agencies in the creation or improvement 
of resources for children as a result of 
their review of selected cases; and 
f4) to inform the county commissioners 
about actions needed to prevent or 
ameliorate child abuse, neglect, or 
dependency. 
(b) The Community Child Protection Team shall 
not encompass a geographic or governmental area 
larger than one county. The county director of 
social — s ervice s — mee^ — e s tabli s h — more — thaH — ene 
community child protection team when needed due 
to caseload size or to access the s pecial expertise 
of existing groups. 



Statutory Authority G. S. 
143-576.1; 143B'l 53. 



7A-544; 7A-675; 



.0402 DUTIES AND RESPONSIBILITIES OF 
THE TEAM 

The duties and responsibilities of the team shall 
be as follows: 



ti^ 



review ca s es — of child — fatalities — as 
defined in Rule .0 4 09(a) of thi s Section. 



The- 



of s uch review shall be to 



f3)- 



purpose 
idcntii^' whether gaps and deficiencies 
exist in the community child protection 
system and to as s ist the county director 
in the protection of surviving s ibling s ; 
-^fe — review — selected — active — eases — as 
outlined in Rule .0 4 05 of this Section in 
which abu s e, neglect or dependency is 
s u s pected or found. The purpose of such 
review — shaH — be to — assist — the — county 
director — m — evaluating — allegations — ef 
abuse. — neglect — or dependency — and — m 
planning — and — providing — services — te 
prevent further maltreatment; and 

■(^) To recommend and advocate for system 

improvements — and — needed — resources 
where gap s and deficiencies exist. 



Statutory Authority 
143B-153. 



G.S. 7A-544; 7A-675; 



.0403 COMPOSITION OF TEAM 

(a) — Unless the county board of commi ss ioner s 
appoints — a — chair — within — 30 — iieep — notice — of a 
vacancy, the county director shall serve. 

{b) — The county director and a member of his 
staff shall participate as members of the team. 

(c) The team will also consist of representatives 
from other human service and law enforcement 



9:3 



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May 2, 1994 



143 



PROPOSED RULES 



agcncicg engaged in the provision of aervicce to 
children — and their — fiunilies — and of individuals 
repre s enting the community'. 

{ij Representatives to be invited by the 

county — director — te — participate — shall 
include — but — not — be — limited — te — the 
following: 
{Ar) — l ocal law enforcement; 
(B) — the District Attorney's office; 
{€) — the medical profession; 
{©) — the local community action agency, as 
defined by the Division of Economic 
Opportunity; 
^E) — school personnel; 
fF) — a — county — social — services — board 

member; and 
i^ — a local mental health professional. 

fS) At their option, the board of county 

commissioners may designate up to five 
representatives of agencies or of the 
community at large to be invited by the 
county director. 



Statutory Authority G.S. 7A-544; 7A-675; 
143B-153. 



.0404 DUTIES AND RESPONSIBILrnES OF 
THE CHAIR 

(a) The chair and county director together s hall 
schedule meeting s , including time and place, and 
prepare the agenda. 

fb) — Within three months prior to, or after, 
assuming — the — chairmanship, — tbe — chair — sbeH 
participate in training developed by the Division of 
Social Services. — Such training shall addres s the 
role and function of the child protection team, 
confidentiality requirements, an overview of child 
protective — services — law — and — policy, — and — team 
record keeping. 



Statutory Authority G.S. 7A-544; 7A-675; 
143B-153. 

.0405 DUTIES OF THE COUNTY 

DIRECTOR OF SOCIAL SERVICES 

Whether — selected — te — serve — as — chair — of the 
community child protection team, — or not. the 
county director shall perform the following duties: 

iij with the exception of those members 

designated — by — the — board — ef — county 
commissioners, appoint community child 
protection — team — members — aad — fiii 
vacancie s as they occur; 
assure — the — development 



m- 



-ef — written 



operating procedures for each team to 



include — composition — ef — membership, 
frequency — e# — meetings, — confidentiality 
policies, training of members and dutica 
and responsibilities of member s ; 

0^ distribute copies ef the written 

procedures to the adminiatmtor of all 
agencies represented on the team as well 
as to each team member; 

iA^ assure that the team defines the categories 

of cases that will be subject to review by 
the team; 

iSj determine the coses in these categories on 

which he will initiate a review and bring 
for review any cose requested by a team 
member; 

f6) report quarterly to the county board of 

social services, or as required by the 
Board, on the activities of the team; and 

f?) assure that the team meets within 4 5 days 

of the effective date of these Rules. 



Statutory Authority 
143B-153. 



.0406 



G.S 7A-544; 7A-675; 



RESPONSIBILITY FOR TRAINING 
OF TEAM MEMBERS 

(a) The Division of Social Services shall develop 
and make available for the team members on an 
ongoing basis, training materials de s cribed in Rule 
.0 4 Q 4 (b) of this Section, to include: 

(1) The role and function of the 
Community Child Protection Team; 

(2) Confidentiality requirements; 

(3) An overview of child protective 
services law and policy; and 

(4) Team record-keeping. 

(h) Each Community Child Protection Team 
shall schedule relevant training as needed by its 
membership, using appropriate resources from the 
local department of social services, other 
community agencies, the Division of Social 
Services, or other individuals whose expertise can 
benefit the functioning of the team. 



Statutory Authority 
143-576.6; 143B-1 53. 



G.S 7A-544; 7A-675; 



.0407 FREQUENCY OF MEETINGS 

Community child protection team meetings shall 



be scheduled with sufficient fr e quency to review 
defined cases selected for review but not less than 
once per quarter. 



Statutory Authority G. S. 
143B-153. 



7A-544; 7A-675; 



144 



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May 2, 1994 



PROPOSED RULES 



.0408 RECORDS 

^a) — The county director shall maintain lists of 

partioipanto fef eaefe teana meeting and 

confidentiality — s tatements — s igned — by — th« — team 

mcmbero — and any — invited — participants. Such 

records — wiH — be — maintained — according — to — the 
standard administrative record retention schedule. 

(b) — Cases receiving child protective services at 
the time of review shall have an entry in the 
child's protective services record to indicate that 
the case was reviewed by the team. — Additional 
entry in the record shall be at the discretion of the 
director of social services. 



Statutory Authority G.S. 
132-3; 143B-153. 



7A-544; 7A-675; 132-1; 



.0409 CASES SUBJECT TO REVIEW BY 
THE COMMUMTY CHILD 
PROTECTION TEAM 

{a) — Each team shall review eases in which a 
child died as a result of suspected abuse, neglect 
or dependency and a report of abuse, neglect or 
dependency had been made about the child or his 
fiimily to the county department of s ocial s ervice s 
within the previous 12 month s or the child or his 
family were recipients of child protective services 
within the previous 12 months. 

fb) Each — team — s hall — review other cases — m 

accordance with Rule .0 4 05( 4 ) and (5) of this 
Section. 



Statutory Authority 
143B-153. 



G.S 7A-544; 7A-675; 



.0410 CONFIDENTIALITY 

fa) — The county director is authorized to share 
with the community child protection team any 
information available to him that is needed by the 
team in the execution of their duties as defined by 
Rule .0 4 02 of this Section. 

(a) Any member of a Community Child 
Protection Team may share, during an official 
meeting of that team, any information available to 
that member that the team needs to carry out its 
responsibilities. The county director, however, 
shall not share any information that discloses the 
identity of individuals who have reported suspected 
abuse, neglect, or dependency to the county 
department of social services. 

(b) Each team member of a Community Child 
Protection Team and invited participant shall sign 
a statement indicating their understanding of and 
adherence to confidentiality requirements^ Such 
statement shall include including the possible civil 



or criminal consequences of any breach of 
confidentialityT as well as the applicability of these 
Rules regarding confidentiality shall apply to any 
personal files that are created or maintained by any 
team member or invited participant. This does not 
preclude any agency representative from sharing 
with — his — agency, — en — a — need — te — kaew — basis, 
information — acquired — at — a — community — child 
protection team meeting regarding a current client 
or referred ca s e. 

(c) Members of the team who have access to 
client information and fail A team member or 
invited participant who fails to comply with the 
rules in confidentiality requirements of this Section 
shall be denied access to confidential information 
and subject to dismissal from the team or to the 
denial of future participation in team reviews 
respectively . 

fd) — Any invited participant who is given acce ss 
to client information during the team review and 
fails to comply with the rules in this Section shall 
be denied future participation in team review s . 

fe) — The county director s hall not share any 
information — which — discloses — the — identity — ef 
individuals who have reported s u s pected abuse, 
neglect or dependency to the county department of 
social service s . 

(d) Information generated by an executive 
session of a Community Child Protection Team is 
accessible for administrative purposes to the 
following: 

m 



the State Team and the Task Force 
during its existence as necessary to 
carry out their purposes; 

(2) staff" of the Division of Social Services 
and staff" of the Office of the Secretary 
of the Department of Human Resource s 
who require access in the course of 
performing duties pertinent to the 
supervision and evaluation of the Child 
Protective Services Program; 

(3) the local board of county 
commissioners when the Community 
Child Protection Team makes its annual 
recommendations, if any, for system 
improvements and needed resources 
where gaps and deficiencies exist in the 
delivery of services to children and 
their families. Such report shall be 
general in nature not revealing 
confidential information about children 
and families: and 

(4) the local board of social services when 
receiving a report by the director of the 
county department of social services on 



9:3 



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May 2, 1994 



145 



PROPOSED RULES 



the activities of the Community Child 

Protection Team. 
This does not preclude any agency representative 
from sharing with his agency, on a need to know 
basis, information acquired at a Community Child 
Protection Team meeting regarding a current client 
or referred case. 

(e) An individual may receive approval to 
conduct a study of the cases reviewed by the 

Teams. 



Community 
approval must 



Child Protection 



Such 



be 



requested in writing of the 
Director of the Division of Social Services. The 
written request will specify and be approved on the 
basis of: 

(1) an explanation of how the findings of 
the study have potential for expanding 
knowledge and improving professional 
practices in the area of prevention, 
identification and treatment of child 
abuse, neglect, dependency, or child 
fatalities: 

a description of how the study will be 
conducted and how the findings will be 
used: 

a presentation of the individual's 
credentials in the area of critical 
investigation: 

a description of how the individual will 
safeguard confidential information: and 
an assurance that no report will contain 
the names of children and families or 
any other information that makes 
children and families identifiable. 



12} 

£3} 

14} 
£5} 



Access will be denied when, in the judgment of 
the director, the study will have minimal impact on 
either knowledge or practice. 



Statutory Authority G.S. 7A-544; 
108A-80; 143-578; 143B-153. 



7A-675; 



.0411 MINUTES 

(a) Every community child protection team s hall 
keep minutes of all official meetings, excluding 
executive sessions, in compliance with the open 
meetings law. — These minutes shall be permanent 
public records and shall be maintained according 
te — the standard administrative record retention 
schedule. 

(b) Information regarding individual clients shall 
be discus s ed in executive session. — Any minute s 
generated — from — any — executive ses s ion — s hall — be 
sealed from public inspection. 

Statutory Authority G.S. 132-1; 132-3; 132-6; 
132-9; 143-318.9-12. 



CHAPTER 43 - TITLE XX 

COMPREHENSIVE ANNUAL SERVICES 

PROGRAM PLAN 

SUBCHAPTER 43L - SOCIAL SERVICES 
BLOCK GRANT 

SECTION .0200 - SERVICES TO BE 
PROVIDED 

.0206 STANDARDS 

All services funded by the Social Services Block 
Grant will meet applicable standards set by the 
appropriate federal agency, a national voluntary 
nonprofit agency, or a state agency having legal 
responsibility for developing standards in a specific 
area. 

Statutory Authority G.S. 143B-153. 

.0207 MANDATED AND OPTIONAL 
SERVICES 

(a) The following services funded with Social 
Services Block Grant funds are required to be 
made available in each county. These services 
are: 

(1) adjustment services for the blind and 
visually impaired: 

(2) adoption services: 

(3) child day care services to support 
employment, provided in conjunction 
with protective services for children or 
to support training leading to 
employment: 

(4) in-home aide services for the blind: 

(5) family planning services: 

(6) adult placement services: 

(7) foster care services for adults: 

(8) foster care services for children: 

(9) health support services: 

(10) individual and family adjustment 



iil} 
02} 
(13) 



services: 

in-home aide services: 



protective services for adults: 
protective services for children, 
(b) With the exception of those mandated 
services specified in Paragraph (a) of this Rule, all 
other services are considered optional for purposes 
of the Social Services Block Grant. 

Statutory Authority G.S. 143B-153. 

.0208 PURCHASE OF SERVICES 

Services funded by the Social Services Block 
Grant are provided directly by the Department of 



146 



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May 2, 1994 



PROPOSED RULES 



Human Resources, its divisions or their local 
counterparts or services are purchased from public 
or private providers by contracting in accordance 
with federal, state and/ or local regulations 
governing such purchases. Limitations on 

purchase of services are as follows: 

(1) Adult placement services and foster care 
services for adults will not be purchased 
but provided only by the county 
departments of social services. 

(2) Adoption and foster care services for 
children will be purchased only from 
agencies listed to place and supervise 
children in accordance with standards 
established under G.S. 143B-153(2)c. 

(3) Those functions of protective services for 
adults and children which are the legally 
mandated responsibility of local 
departments of social services will not be 
purchased. 

(4) The following purchases can be made 
only through direct payments by county 
departments of social services: 

(a) the provision of basic appliances as an 
element of housing and home 
improvement services. 

(h) the payment of fees for membership m 
community sponsored recreational 
organizations as an element of 
individual and family adjustment 
services, 

(c) assistance in meeting the usual expenses 
of attending technical institutes and 
community colleges as an element of 
employment and training support 
services. 

(5) In-Home Aide services for the blind and 
adjustment services for the blind and 
visually impaired will be purchased by 
the Division of Services for the Blind. 

Statutory Authority G.S. 1438- 153. 

.0209 SERVICES POLICIES 

Respective divisions or agencies within the 
Department of Human Resources are responsible 
for the administration of regulations and policies 
which affect client eligibility or control provision 
of services. Information about services policies 
can be obtained by direct inquiry to the Division 
or Office of the Department of Human Resources 
which has responsibility for the particular service. 

Statutory Authority G.S. 143B-153. 



jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to adopt rule cited as 10 NCAC 41J .0501. 

1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on June 1 , 1994 at the Albemarle Building, 
Room 943-2, 325 N. Salisbury Street, Raleigh, 
N.C. 

iveason for Proposed Action: To require that a 
structured risk assessment be completed on all 
foster care cases where family reunification is the 
plan. This Rule will enhance the quality and 
consistency of foster care services. 

(comment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
Rule by calling or writing to Shamese Ransome, 
Division of Social Services, 325 N. Salisbury St. , 
Raleigh, N.C. 27603, (919) 733-3055. 

CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41J - FOSTER CARE 
SERVICES 

SECTION .0500 - RISK ASSESSMENT 

.0501 WHEN TO COMPLETE A RISK 
ASSESSMENT 

(a) For foster care services cases, the county 
director shall complete a structured risk assessment 
for all cases in which family reunification is being 
considered as the permanent plan and where abuse 
or neglect has been substantiated. It also shall be 
completed in certain dependency cases at the 
discretion of the Director. If the court has re- 
lieved the agency of reunification efforts, then 
completion of a structured risk assessment is no 
longer required. If a risk assessment is required, 
the Director shall document the risk assessment on 
the risk assessment tool provided by the Depart- 
ment of Human Resources. Division of Social 
Services. The risk assessment tool shall be com- 



9:3 



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May 2, 1994 



147 



PROPOSED RULES 



pleted according to the instructions for the risk 
assessment tool provided by the Department of 
Human Resources, Division of Social Services. 
The findings of the risk assessment must be used 
in developing a service plan with the family. 

(h) For those cases in which children enter 
foster care and reunification is the permanent plan, 
the structured risk assessment must be completed 
at least once every six months and must support 
the current case plan. 

(c) A structured risk assessment shall be com- 
pleted within 30 days prior to placement of the 
child back in the home and must support the 
decision to return the child home. 

(d) A structured risk assessment must be com- 
pleted within 30 days prior to case closure and 
must support the decision to close the case. 

(e) A structured risk assessment shall be com- 
pleted at other times, at the county director's 
discretion, when the risk assessment would assist 
the agency in making decisions concerning an open 
foster care case, for example, to support a change 
in the case plan; or prior to court action in which 
the agency is asking the court to sanction the 
agency's plan to: allow unsupervised visits, return 
the child home, stop reunification efforts, or 
initiate other significant changes in the case. 

Statutory Authority G. S. 143B-153. 

iS Otice is hereby given in accordance with G.S. 
150B-21.2 that the Social Services Commission 
intends to amend rule cited as 10 NCAC 46C 
.0106. 

1 he proposed effective date of this action is 
August 1. 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on June 1, 1994 at Albemarle Building, 
Room 943-2, 325 North Salisbury Street, Raleigh, 
NC 27603. 

Keason for Proposed Action: The method for 
establishing payment rates for small day care 
homes and individual child care arrangements 
(now known as nonregistered homes) has been 
changed by legislation; therefore, it is necessary to 
amend the rule. The definition of "allowable 
charge" is being amended to provide program 



consistency. 

i^omment Procedures: Comments may be pre- 
sented in writing anytime before or at the public 
hearing or orally at the hearing. Time limits for 
oral remarks may be imposed by the Commission 
Chairman. Any person may request copies of this 
rule by calling or writing to Shamese Ransome, 
Division of Social Services, 325 N. Salisbury 
Street, Raleigh, NC 27603, 919/733-3055. 

CHAPTER 46 - DAY CARE RULES 

SUBCHAPTER 46C - PURCHASE OF 
CHILD DAY CARE 

SECTION .0100 - BASIC REQUIREMENTS 

.0106 PAYMENT RATES 

(a) Rates for daily care purchased from a child 
day care center shall be established according to 
the procedures described in Rule .0107 of this 
Section and according to the instructions included 
in the annual appropriations act. 

(b) The payment rate for full tim e child care 
purchased from a child day care home as defined 
in G.S. 110-86(4) is one hundr e d fifty dollars 
($150.00) per month, is limited to the county 
market rate for home-based child care established 
by the Department in accordance with the annual 
appropriations act. 

(c) The payment rate for full time child care 
purchased from an individual child care arrange 



ment is on e hundr e d dollars ($100.00) p e r month. 
a home-based child care arrangement which meets 



the requirements established by the Social Services 
Commission for a nonregistered day care home, as 
codified in \Q NCAC 46G. is limited to the county 
market rate for home-based child care established 



by the Department in accordance with the annual 
appropriations act. 

(d) The payment rates for daily transportation 
purchased from any approved provider, except as 
provided in Paragraph (a) of Rule .0107. are: 

(1) forty-two dollars ($42.00) per month 
for any child younger than three years 
and any other child whose transporta- 
tion needs require special accommoda- 
tions or additional supervision. 

(2) thirty-eight dollars ($38.00) per month 
for any child who does not meet the 
requirements of Subparagraph (d) (1). 

(e) Payment rates for part-time care shall be 
prorated according to the number of hours per day 



148 



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PROPOSED RULES 



or days per month the child is scheduled to attend, 
(f) Client fees imposed in accordance with the 
provisions of Section .0300 of Subchapter 46H 
shall be subtracted from the provider's allowable 
eest county payment rate to determine the state 
payment rate amount for an individual child. 

Statutory Authority G.S. 143B-153(8)a. 

TITLE 12 - DEPARTMENT 
OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Criminal 
Justice Education and Training Standards Conunis- 
sion intends to amend rules cited as 12 NCAC 9B 
.0101, .0203, .0205, .0208 - .0209, .0223, .0231, 
.0312, .0401, .0410, .0413; 9C .0215. .0307, 
.0601, .0603 - .0604 and 9E .0103. 

Ihe proposed effective date of this action is 
January 1, 1995. 

Ihe public hearing will be conducted at 9:00 
a.m. on May 19, 1994 at the Holiday Inn - North, 
3050 University Parkway, Winston-Salem, NC 
27105. 

Keasonfor Proposed Action: 
12 NCAC 9B .0101, .0203, .0205, .0208 - .0209, 
.0223, .0231, .0312, .0401, .0410, .0413; 9C 
.0215, .0307, .0601, .0603 - .0604 - The Stan- 
dards Commission has authorized rule-making 
authority to amend several of its administrative 
rules in order to better define the minimum stan- 
dards that regulate the criminal justice officer 
profession. Additionally, the Commission is 
adopting a new psychological screening require- 
ment for all criminal justice officers. 
12 NCAC 9E .0103 - The Standards Commission 
has authorized rule-making authority to amend this 
administrative rule in order to express the 
Commission's strong support for annual in-service 
training for law enforcement officers above the 
minimum standards delineated in its rules. 

L^onvnent Procedures: Any person interested in 
these Rules may present oral or written comments 
relevant to the proposed action at the Public Rule- 
Making Hearing. In addition, the record of 
hearing will be open for receipt of written 
comments from May 2, 1994 to June I, 1994. 



Written comments not presented at the hearing 
should be directed to David D. Cashwell, 
Director, at the address given below. The 
proposed rules are available for public inspection 
and copies may be obtained at the following 
address: Criminal Justice Standards, P. O. Drawer 
149, Raleigh, NC 27602. (Room 150, Court of 
Appeals Bldg. , 1 West Morgan St. , Raleigh, NC) 

CHAPTER 9 - CRIMINAL JUSTICE 

EDUCATION AND TRAINING 

STANDARDS 

SUBCHAPTER 9B - STANDARDS FOR 

CRIMINAL JUSTICE EMPLOYMENT: 

EDUCATION: AND TRAINING 

SECTION .0100 - MINIMUM STANDARDS 

FOR CRIMINAL JUSTICE 

EMPLOYMENT 



.0101 



Every 
agency 
(1) 
(2) 
(3) 



(4) 



(5) 



(a) 



(b) 



MINIMUM STANDARDS 
FOR CRIMINAL JUSTICE 
OFFICERS 

criminal justice officer employed by an 
in North Carolina shall: 
be a citizen of the United States; 
be at least 20 years of age; 
be of good moral character pursuant to 
G.S. 17C-10 and as determined by a 
thorough background investigation; 
have been fingerprinted and a search 
made of local, state, and national files to 
disclose any criminal record; 
have been examined and certified by a 
licensed physician or surgeon to meet 
physical requirements necessary to 
properly fulfill the officer's particular 
responsibilities and shall have produced a 
negative result on a drug screen 
administered according to the following 
specifications: 
the drug screen shall be a urine test 
consisting of an initial screening test 
using an immunoassay method and a 
confirmatory test on an initial positive 
result using a gas chromatography/mass 
spectrometry (GC/MS) or other reliable 
initial and confirmatory tests as may, 
from time to time, be authorized or 
mandated by the Department of Health 
and Human Services for Federal 
Workplace Drug Testing Programs; 
a chain of custody shall be maintained 
on the specimen from collection to the 



9:3 



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May 2, 1994 



149 



PROPOSED RULES 



eventual discarding of the specimen; 

(c) the drug screen shall test for the 
presence of at least cannabis, cocaine, 
phencyclidine (PCP), opiates and 
amphetamines or their metabolites; 

(d) the test threshold values established by 
the Department of Health and Human 
Services for Federal Workplace Drug 
Testing Programs, as found in 53 
C.F.R. 11970, are hereby incorporated 
by reference, and shall automatically 
include any later amendments and 
editions of the incorporated material as 
provided by G.S. 150B-21.6; 

(e) the test conducted shall be not more 
than 60 days old, calculated from the 
time when the laboratory reports the 
results to the date of employment; 

(f) the laboratory conducting the test must 
be certified for federal workplace drug 
testing programs, and must adhere to 
applicable federal rules, regulations and 
guidelines pertaining to the handling, 
testing, storage and preservation of 
samples, except that individual agencies 
may specify other drugs to be tested for 
in addition to those drugs set out in 
Subparagraph (c) of this Ruler^ 

Note: — Although not pre s ently required by these 

Rules, the Commission recommends that every 

candidate for a position as — a criminal justice 

officer be examined by a licensed psychiatrist or 

clinical psychologist prior to employment, or be 

administered a psychological evaluation te s t battery 

to determine his mental and emotional suitability to 

perform the duties of an officer. 

(6) have been administered a psychological 

screening examination by a clinical 

psychologist or psychiatrist licensed to 

practice in North Carolina or by a 

clinical psychologist or psychiatrist 

authorized to practice in accordance with 

the rules and regulations of the United 

States Armed Forces within one year 



01 



£8] 



prior to employment by the employing 
agency to determine the officer's mental 
and emotional suitability to properly 
fulfill the responsibilities of the position; 
{€^ have been interviewed personally by 
the Department head or his representative 
or representatives, to determine such 
things as the applicant's appearance, 
demeanor, attitude, and ability to 
communicate; 
f?) notify the Standards Division of all 



criminal offenses which the officer pleads 
no contest to, pleads guilty to or is found 
guilty of. This shall include all criminal 
offenses except minor traffic offenses and 
shall specifically include any offense of 
Driving Under The Influence (DUl) or 
Driving While Impaired (DWI). A minor 
traffic offense is defined, for purposes of 
this Subparagraph, as an offense where 
the maximum punishment allowable by 
law is 60 days or less. Other offenses 
under Chapter 20 (Motor Vehicles) of the 
General Statutes of North Carolina or 
similar laws of other jurisdictions which 
shall be reported to the Standards 
Division expressly include G.S. 20-139 
(persons under influence of drugs>7_, G.S. 
20-28(b) (driving while license 
permanently revoked or permanently 
suspended) and G.S. 20-166 (duty to stop 
in event of accident). 

The notifications required under this 
Subparagraph must be in writing, must 
specify the nature of the offense, the court 
in which the case was handled and the 
date of the conviction. The notifications 
required under this Subparagraph must be 
received by the Standards Division within 
30 days of the date the case was disposed 
of in court. 

The requirements of this Subparagraph 
shall be applicable at all times during 
which the officer is certified by the 
Commission and shall also apply to all 
applications for certification. 
Officers required to notify the Standards 
Division under this Subparagraph shall 
also make the same notification to their 
employing or appointing executive officer 
within 20 days of the date the case was 
disposed of in court. The executive 
officer, provided he has knowledge of the 
officer's conviction(s), shall also notify 
the Standards Division of all criminal 
convictions within 30 days of the date the 
case was disposed of in court. Receipt by 
the Standards Division of a singl 
notification, from either the officer or the 
executive officer, is sufficient notice foi 
compliance with this Subparagraph. 

Statutory Authority G.S. 17C-6; I7C-10. 

SECTION .0200 - MINIMUM STANDARDS 
FOR CRIMINAL JUSTICE SCHOOLS 



150 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



PROPOSED RULES 



AND CRIMINAL JUSTICE TRAINING 

PROGRAMS OR COURSES OF 

INSTRUCTION 

.0203 ADMISSION OF TRAINEES 

(a) The school may not admit any individual 
younger than 20 years of age as a trainee in any 
non-academic basic criminal justice training course 
without the prior written approval of the Director 
of the Standards Division. 

(b) The school shall give priority admission in 
accredited criminal justice training courses to 
individuals holding full-time employment with 
criminal justice agencies. 

(c) The school may not admit any individual as 
a trainee in a presentation of the "Criminal Justice 
Instructor Training Course" who dees will not 
meet the minimum education and experience 
requirements for instructor certification under Rule 
.0302(1) of this Subchapter within three months of 
successful completion of the Instructor Training 
State Comprehensive Examination . 

(d) The school shall administer the reading 
component of a standardized test which reports a 
grade level for each trainee participating in the 
"Basic Recruit Training — Law Enforcement" 
course. The specific type of test instrument shall 
be determined by the school director and shall be 
administered no later than by the end of the first 
two weeks of a presentation of the "Basic Recruit 
Training — Law Enforcement" course. The grade 
level results on each trainee shall be submitted to 
the Commission as an attachment to the 
Post-delivery Report of Training Course 
Presentation (Form F-lOB). 

(e) The school shall not admit any individual as 
a trainee in a presentation of the "Basic Recruit 
Training — Law Enforcement" course unless as a 
prerequisite the individual has provided to the 
certified school director a Medical Examination 
Report Form in compliance with 12 NCAC 9B 
.0104, properly completed by a physician licensed 
to practice medicine in North Carolina; however, 
the Director of the Standards Division is 
authorized to grant an exception to this 
requirement where the school director can 
document exceptional or emergency circumstances. 
The Medical Examination Report Form required 
by the North Carolina Sherifi^s Education and 
Training Standards Commission shall be 
recognized by the Commission for the purpose of 
complying with this Rule. 

Statutory Authority G.S. 17C-6; 17C-10. 



.0205 BASIC TRAINING - LAW 

EIVFORCEMENT OFFICERS 

(a) The basic training course for law 
enforcement officers consists of instruction 
designed to provide the trainee with the skills and 
knowledge to perform those tasks essential to 
function in law enforcement. 

(b) The course entitled "Basic Recruit Training 
~ Law Enforcement" shall consist of a minimum 
of 432 hours of instruction and shall include the 
following identified topic areas and minimum 
instructional hours for each area: 

(1) Course Orientation 2 Hours 

(2) Constitutional Law 4 Hours 

(3) Laws of Arrest, Search and 

Seizure 16 Hours 

(4) Mechanics of Arrest; Arrest 
Procedures 8 Hours 

(5) Law Enforcement Communications and 
Information Systems 4 Hours 

(6) Elements of Criminal Law 24 Hours 

(7) Defensive Tactics 16 Hours 

(8) Juvenile Laws and Procedures 8 Hours 

(9) First Responder 40 Hours 

(10) Firearms 40 Hours 

(11) I'atrol Techniques 16 Hours 

(12) Crime Prevention Techniques 4 Hours 

(13) Field Notetaking and Report 

Writing 12 Hours 

(14) Mechanics of Arrest; Vehicle 

Stops 6 Hours 

(15) Mechanics of Arrest; Custody 
Procedures 2 Hours 

(16) Mechanics of Arrest; Processing 
Arrestee 4 Hours 

(17) Crisis Management 10 Hours 

(18) Special Populations 12 Hours 

(19) Civil Disorders 8 Hours 

(20) Criminal Investigation 28 Hours 

(21) Interviews: Field and 

In-Custody 8 Hours 

(22) Controlled Substances 6 Hours 

(23) ABC Laws and Procedures 4 Hours 

(24) Electrical and Hazardous Materials 
Emergencies 12 Hours 

(25) Motor Vehicle Laws 20 Hours 

(26) Techniques of Traffic Law 
Enforcement 6 Hours 

(27) Traffic Accident Investigation 20 Hours 

(28) Law Enforcement Driver 

Training 16 Hours 

(29) Preparing for Court and Testifying in 
Court 12 Hours 

(30) Dealing with Victims and 

the Public 8 4 Hours 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



151 



PROPOSED RULES 



on 



Ethics of 
Enforcement 



Professional Law 
4 Hours 



05^(33) 
(c) 
Manual 



Testing 13 Hours 

Physical Fitness 43 Hours 

The "Basic Law Enforcement Training 

" as published by the North Carolina 



Justice Academy is hereby adopted incorporated by 
reference, and shall automatically include any later 
amendments and editions of the adopted matter as 
authorized — ^' — Gz&. — 150B 1 4 (c), incorporated 
material as provided by G.S. 150B-21.6, to apply 
as basic curriculum for this basic training course 
for law enforcement officers as administered by 
the Commission. Copies of this publication may 
be inspected at the office of the agency: 

Criminal Justice Standards Division 

North Carolina Department of Justice 

1 West Morgan Street 

Court of Appeals Building 

Post Office Drawer 149 

Raleigh, North Carolina 27602 

and may be obtained at cost from the Academy at 

the following address: 

North Carolina Justice Academy 

Post Office Drawer 99 

Salemburg, North Carolina 28385 

(d) The "Basic Law Enforcement Training 
Course Management Guide" as published by the 
North Carolina Justice Academy is hereby adopted 
incorporated by reference, and shall automatically 
include any later amendments and editions of the 
adopted matter as authorized by G.S. 150B 1 4 (o), 
incorporated material as provided by G.S. 150B- 
21.6, to be used by certified school directors in 
planning, implementing and delivering basic 
training courses. Each certified school director 
shall be issued a copy of the guide at the time of 
certification at no cost to the accredited school. 

Statutory Authoriry G.S. 17C-6; 17C-10. 

.0208 BASIC TRAINING -- PROBATION 
/PAROLE OFFICERS 

(a) The basic training course for 
Probation/F^role Officers and Intake Officers shall 
consist of a minimum of 160 hours of instruction 
designed to provide the trainee with the skills and 
knowledge to perform those tasks essential to 
function as a probation/parole or intake officer. 

(b) Each basic training course for 
Probation/I^ole Officers ef and Intake Officers 
shall include training in the following identified 
topical areas; however, the director is authorized 
to permit modification of the topical areas and 



minimum instructional hours, not inconsistent with 
a minimum of 160 hours of instruction, on an 
interim basis with such modifications to be 
submitted to the Standards Committee and the full 
commission at their next regularly scheduled 
meeting: 

{i-) Probation/ Rxrolc Organizat iefl and 



<4)- 



Ph 



(M)- 



f35>- 



^^ 



ill 
121 



Policica 



4 Hours 



4 Hours 



{3^ Law for Layman 

{^) Presentence &ed Prediagnostic 

8 Hours 



Investigations — 
Probation Law 



8 Hours 



Speeches 

Probation/ Rarolc 



2 Hours 



Admi 



2 Hours 



iimstration 

Processing New Probation Cases and 



Transmittals 



4 Hours 



^8) Arrest, Search and Seizure, Violations, 

and Revocations 4 Hours 

{^ Photography 

^W) Restraints, Extradition, — a*d 



2 Hours 



Transporting 



2 Hours 



fW^ Case Management 

^i3) Drug Identification 



16 Hours 



4 Hours 



fi^) Transfers, Retrieval e# — Violators, 



Interstate Compact, and 



Clo s ing Cases 
Moot Court — 



4 Hours 



2 Hours 



2 Hours 



^i53 Parole System and Law 

^i^) Parole Analytical Process and Executive 

Clemency 2 Hours 

fiT) Processing New Parole Coses — 2 Hours 

4 Hours 



Parolc Violations and 
Revc 



TOcations 

Probation/Phrole Review and 
-4est 



4 Hours 



^30) Understanding Clients 



8 Hours 



^34-) Practical Human Relations 

SteHs 



8 Hours 



•(33^ Probation/Parole Counseling and 



Interviewing 



16 Hours 



^3^3 Basic — Interpersonal — Communication 



SkiHs- 



16 Hours 



■(34) Approaches to Counseling 16 Hou 

Intervention — aad 



Crisis 



fS 

Domestic 



Disputes 

Community Resources 



8 Hours 



Management 



4 Hours 



^3?) Probation/Parole Counseling and 



Interviewing Review and Test — 4 Hours 
Orientation to DAPP Organization, 
Policy, and Procedure 12 Hours 

Legal Considerations for the 



Probation/Parole Officer 



20 Hours 



to include as a minimum the following 



152 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



PROPOSED RULES 



subject areas: 

(A) Introduction to the Lepal System 

(B) Legalities of Pre-sentence & Pre- 
diagnostic Investigations 

(C) Probation Law 

(D) Parole Law 

(3) Officer- Probationer/farolee 

Relations 28 Hours 

to include as a minimum the following 
subject areas: 

Understanding Probationer/F^rolee 

Behavior 



lA} 

im 
mi 

lEl 



Counseling Methodologies 
Crisis Intervention and 



Domestic 



Disputes 

Counseling Substance Abuse Cases 

Interview Techniques 

Probationer/F^rolee Supervision 
£4] Administrative and Probationer/Parolee 
Management 32 Hours 

to include as a minimum the following 
subject areas: 

(A) Case Management 

(B) Processing New Parole Cases 

(C) Parole Violations and Revocations 

(D) Community Resources Management 

(E) Processing Probation Cases 

(5) Defensive Protection 30 Hours 
to include as a minimum the following 
subject areas: 

(A) Arrest Procedures 

(B) Unarmed Self- Defense 

(C) Personal Protection 

(6) Courtroom Preparation and 
Demeanor 8 Hours 
to include as a minimum the following 
subject areas: 

(A) Public Speaking 

(B) Role of the Probation/Parole Witness 

(C) Moot Court 
Drug Identification 4 Hours 
Basic Life Su pport 



01 
18} 



19} 
(10) 



8 Hours 
Physical Fitness Education 12 Hours 
Administrative Matters. Review, and 
Testing 6 Hours 



TOTAL 



160 Hours 



Statutory Authority G.S. 17C-6; 17C-10. 

.0209 CRIMINAL JUSTICE 

INSTRUCTOR TRAINING 

(a) The instructor training course required for 



general instructor certification shall consist of a 
minimum of 80 hours of instruction presented 
during a continuous period of not more than two 
weeks. 

(b) Each instructor training course shall be 
designed to provide the trainee with the skills and 
knowledge to perform the function of a criminal 
justice instructor. 

(c) Each instructor training course shall include 
as a minimum the following identified topic areas 
and minimum instructional hours for each area: 



(1) 


Orientation and Pretest 


2 1/2 Hours 


(2) 


Curriculum Development: 






ISD Model 


1 1/2 Hours 


(3) 


Civil Liability for Law 


Enforcement 




Trainers 


2 Hours 


(4) 


Interpersonal Communication in 




Instruction 


4 6 Hours 


(5) 


Lesson Plan Preparation: 


Professional 




Resources 


I 1/2 Hours 


(6) 


Lesson Plan Preparation: 


Format and 




Objectives 


6 Hours 


(7) 


Teaching Adults 


6 Hours 


(8) 


Principles of Instruction: Demonstration 



(9) 



Methods and Practical 

Exercise 

Methods and Strategies of 



6 Hours 





Instruction 


4 Hours 


(10) 


The Evaluation Process 


4 Hours 


(11) 


Principles of Instruction: 


Audio-Visual 




Aids 8 


6 Hours 


(12) 


Student 10-Minute Talk 


and Video 




Critique 


6 Hours 


(13) 


Student Performance: 
First Thirty-Minute 






Presentation 


7 1/2 Hours 




Second Thirty-Minute 






Presentation 


7 1/2 Hours 




Final Eighty-Minute 






Presentation 


12 Hours 


fl4) 


Examination 


1 1/2 Hours 



(d) The "Basic Instructor Training Manual" as 
published by the North Carolina Justice Academy 
is hereby adopted incorporated by reference, and 
shall automatically include any later amendments 
and editions of the adopted matter a s authorizcxl by 

GrS: 150B 1 4 (c). incorporated material as 

provided by G.S. 150B-21.6. to apply as the basic 
curriculum for delivery of basic instructor training 
courses. Copies of this publication may be 
inspected at the agency: 

Criminal Justice Standards Division 

North Carolina Department of Justice 

1 West Morgan Street 

Court of Appeals Building 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



153 



PROPOSED RULES 



Post Office Drawer 149 
Raleigh, North Carolina 27602 
and may be purchased at cost from the Academy 
at the following address: 

North Carolina Justice Academy 

Post Office Drawer 99 
Salemburg, North Carolina 28385 

Statutory Authority G. S. 1 7C-6. 

.0223 BASIC TRAINING -- PROBATION 
/PAROLE OFFICERS- 
SURVEILLANCE 

In addition to the requirements for Basic Training 
for Probation/F^role Officers and Intake Officers 
contained in Rule .0208 of this Section, every 
Probation/Parole Officer-Surveillance shall 
complete a supplemental training course which 
shall include training in the following identified 
topical areas and minimum instructional hours for 
each area: 



Testing 






fB- 






m 

121 
13} 



la] 
id} 



14} 



la} 
£b} 
ic} 
15} 

16} 
01 



44 



rearms 

Unarmed Self Defense 



2 4 Hour s 



18 Hours 



Drug Identification 

Radio Communication 



4 Hours 



2 Hour s 



Client Interrogation 



6 Hour s 



Criminal Investigation 
Client Surveillance 



4 Hour s 



8 Hours 



4 Hours 



Breathalyzer Operation 

Interpersonal Communication — 12 Hours 



?©tal- 



8 2 Hours 



Orientation to Intensive 
Procedures 



Operational 
2 Hours 
30 Hours 



Firearms 

Advanced Defensive Protection 22 Hours 
to include as a minimum the following 
subject areas: 
Defensive Tactics 

Defensive Techniques with Flashlight 
Disarming and Weapons Retention 
Defensive Application of Chemical 
Aerosols 
Officer-Probationer/Parolee 
Relations 12 Hours 

to include as a minimum the following 
subject areas: 
Interpersonal Communications 
Summary of Drug Use and Abuse 
Interview/Investigation/ Surveillance 
Advanced Arrest, Search and 



Seizure 

DAPP Specialized 

O perations 

Administrative Matters, 



8 Hours 
Equipment 

4 Hours 
Review, and 



TOTAL 



4 Hours 
82 Hours 



Statutory Authority G. S. 1 7C-6. 

,0231 BASIC TRAINING - PROBATION 
/PAROLE INTENSIVE OFFICER 

In addition to the requirements for Basic Training 
for Probation/Parole Officers and Intake Officers 
contained in Rule .0208 of this Section, every 
Probation/F^ole Intensive Officer shall complete 
a supplemental training course contained in Rule 
.0223 of this Section, aed — the — 15 4 hour 
Probation/Rirolc advanced training program, and 
an Advanced Training Program which shall include 
training in the following identified topical areas 
and minimum instructional hours for each area: 
(1) Working with Special 
Probationers/I^rolees 30 Hours 

to include as a minimum the following 
subject areas: 
The Criminal Personality 
Substance Abuse Offender 
Violent/Sexual Offender 
High Risk Probationers/Parolees 
Advanced Communication 
Skills 31 Hours 

to include as a minimum the following 
subject areas: 
Active Listening 
Deception 

Assertiveness Training 
Supervision Styles 
Professional Speaking 
Personal/Pro fessional Skills 
Development 32 Hours 

to include as a minimum the following 
subject areas: 
Professional Ethics 



lb] 
Ic} 
Id} 

12} 



la} 
lb} 
Ic} 
Id} 
le} 
13} 



la} 
lb} 
Ic} 
Id} 

14} 



la} 
lb} 
ic} 

15} 



la} 



Time Management 

Stress Management 

Advanced Physical Fitness Education 
Community Social Issues 22 Hours 

to include as a minimum the following 
subject areas: 

Domestic and Family Violence 

Satanism/Gangs 

Multi-Cultural Sensitivity and 

Awareness 
Personal Protection 20 Hours 

to include as a minimum the following 
subject areas: 

Search Practicum 

Practical Skills in Self-Defense 



154 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



PROPOSED RULES 



(c) Weapons Safety 

(6) Special Resource Programs for 
Probationers/I^olees 8 Hours 

(7) Practical Skills for Testifying in Violation 
Hearings 4 Hours 

(8) Administrative Matters. Review, and 
Testing 7 Hours 



TOTAL 



Statutory Authority G.S. 17C-6. 



154 Hours 



SECTION .0300 - MINIMUM STANDARDS 

FOR CRIMINAL JUSTICE 

INSTRUCTORS 

.0312 INSTRUCTOR CERTIFICATION 
RENEWAL 

Individuals who hold full-general instructor 
certification or full-specific instructor certification 
may, for just cause, be granted an extension of the 
two-year period to successfully teach the few eight 
hour minimum requirement. The Director may 
grant such extensions on a one time basis only not 
to exceed 12 months. For purposes of this Rule, 
just cause means accident, illness, emergency, 
course cancellation, or other exceptional 
circumstances which precluded the instructor from 
fulfilling the teaching requirement. 

Statutory Authority G. S. 1 7C-6. 

SECTION .0400 - MINIMUM STANDARDS 
FOR COMPLETION OF TRAINING 

.0401 TIME REQUIREMENT FOR 

COMPLETION OF TRAINING 

(a) Each criminal justice officer, with the 
exception of law enforcement officers, holding 
probationary certification shall satisfactorily 
complete a commission-accredited basic training 
course which includes training in the skills and 
knowledge necessary to perform the duties of his 
office. The officer shall complete such course 
within one year from the date of his original 
appointment as determined by the date of the 
probationary certification. 

(b) Each law enforcement officer, except alcohol 
law enforcement agents and wildlife enforcement 
officers, shall have satisfactorily completed in its 
entirety the accredited basic training course as 
prescribed in 12 NCAC 9B .0205(b) prior to 
obtaining probationary certification. 

(e) — Each alcohol law enforcement agent shall 
have satisfactorily completed the firat 1 1 wcclca of 



the Basic Training: — Alcohol Law Enforcement 
Agents' course stipulated in 12 NCAC 9B .0217(b) 
prior to obtaining probationary certification. — The 
agent shall satisfactorily complete such course in 
its entirety within one year from the date of his 
original appointment as determined by the date of 
the probationary certification. 

fd) (c} Each wildlife enforcement officer shall 
have satisfactorily completed in its entirety the 
Basic Training — Wildlife Enforcement Officers' 
course stipulated in 12 NCAC 9B .0228(b) prior to 
obtaining probationary certification. 

^ {d} If a trainee completes the basic training 
course prior to being employed as a law 
enforcement officer, the trainee shall be duly 
appointed and sworn as a law enforcement officer 
within one year of the completion of training for 
that basic training course to be recognized under 
these Rules. This one year period shall begin with 
the successful completion of the State 
Comprehensive Examination. 

(^ £e} If local confinement personnel complete 
basic training prior to being employed by a facility 
in a position which requires certification, such 
personnel shall be duly appointed to a local 
confinement facility position within one year of the 
completion of training for that basic training 
course to be recognized under these Rules. This 
one year period shall begin with the successful 
completion of the State Comprehensive 
Examination. 

Statutory Authority G.S. 17C-2; 17C-6: 17C-10. 

.0410 CRIMINAL JUSTICE INSTRUCTOR 
TRAINING COURSE 

(a) To acquire successful completion of the 
"Criminal Justice Instructor Training Course" the 
trainee shall: 

(1) satisfactorily complete all of the 
required coursework, specifically 
including each of the trainee 
presentations with video taping, 
playback, and critique as specified in 
the "Basic Instructor Training Manual" 
as published by the North Carolina 
Justice Academy. All trainee 
presentations must have met the criteria 
and conditions specified in the course 
orientation of the "Basic Instructor 
Training Manual;" 

(2) attain the minimum score on each 
performance area as specified in the 
course abstract of the "Basic Instructor 
Manual" for the final written lesson 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



155 



PROPOSED RULES 



plan and final 80-minute presentation; 
and 
(3) achieve a score of 75 percent correct 
answers on the Commission- 
administered comprehensive written 
examination, 
(b) Should a trainee lail to meet the minimum 
criteria on the final lesson plan or the final 80- 
minute presentation, he/she shall be authorized one 
opportunity to correct either of these deficienciesv 
Such makeup work must be completed during the 
original two week course and prior to the trainee 
being — admini s tered — tbe — comprehensive — written 
examination, by the end of the original two -week 
course. 

Statutory Authority G.S. 17C-6; 17C-10. 

.0413 COMPREHENSIVE WRITTEN EXAM 
-- INSTRUCTOR TRAINING 

(a) At the conclusion of a s choors offering of 
the "Criminal Justice Instructor Training Course" 
in its entirety, an An authorized representative of 
the Commission shall administer a comprehensive 
written examination to each trainee who has 
satisfactorily completed all of the required cours e 

work. A trainee cannot be administered the 

comprehensive written cximiination until such time 
as all of the pertinent course work is completed. 
the first twelve units of the "Criminal Justice 
Instructor Training Course" as described in the 
"Basic Instructor Training Manual." 

(b) The examination shall be an objective test 
consisting of multiple-choice, true-false, or similar 
questions covering the topic areas contained in the 
accredited course curriculum. 

(c) The Commission's representative shall 
submit to the school director within five days of 
the administration of the examination a report of 
the results of the test for each trainee examined. 

(d) A trainee shall successfully complete the 
comprehensive written examination if he/she 
achieves a minimum of 75 percent correct 
answers. 

(e) A trainee who has fully participated in a 
scheduled delivery of an accredited training course 
and has demonstrated satisfactory competence in 
each performance area of the course curriculum, 
who has scored at least 65 percent but has failed to 
achieve the minimum passing score of 75 percent 
on the Commission's comprehensive written 
examination, may request the Director of the 
Standards Division to authorize a re-examination 
of the trainee. 

(1) The trainee's request for re-examination 



shall be made in writing on the 
Commission's form and shall be 
received by the Standards Division 
within 30 days of the examination. 

(2) The trainee's request for re-examination 
shall include the favorable 
recommendation of the school director 
who administered the course. 

(3) A trainee shall have, within 90 days of 
the original examination, only one 
opportunity for re-examination and shall 
satisfactorily complete the subsequent 
examination in its entirety. 

(4) The trainee will be assigned in writing 
by the Standards Division staff a place, 
time, and date for re-examination. 

(5) Should the trainee on re-examination 
not achieve the prescribed minimum 
score on the examination, the trainee 
may not be given successful course 
completion and shall enroll and 
successfully complete a subsequent 
offering of the instructor course in its 
entirety before further examination may 
be permitted. 

(f) A trainee who fails to score at least 65 
percent on the Commission's comprehensive 
written examination shall be terminated from the 
course. 

Statutory Authority G.S. 17C-6; 17C-10. 

SUBCHAPTER 9C - ADMINISTRATION 

OF CRIMINAL JUSTICE EDUCATION 

AND TRAINING STANDARDS 

SECTION .0200 - FORMS 

.0215 PROFESSIONAL LECTURER 
CERTIFICATION 

The Application for Professional/G«e9t Lecturer 
CertificationT is used by persons seeking 
certification as a lecturer in an accredited criminal 
justice course. It requests information regarding 
the applicant's credentials and the topic areas of 
expected instruction. 

Statutory Authority G. S. 1 7C-6. 

SECTION .0300 - CERTIFICATION 
OF CRIMINAL JUSTICE OFFICERS 

.0307 AGENCY RETENTION OF 

RECORDS OF CERTIFICATION 

Each agency shall place in personnel files the 



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PROPOSED RULES 



official notification from the Commission of either 
probationary or general certification for each 
criminal justice officer employed or appointed by 
the agency. Such files shall be available for 
examination at any reasonable time by 
representatives of the Commission for the purpose 
of verifying compliance with these Rules. The 
personnel files shall also contain: 

(1) the officer's Personal History Statement; 

(2) the officer's Medical History Statement 
and Medical Examination Report; 

(3) documentation of the officer's drug 
screening results; 

(4) a written summary of the Background 
Investigation conducted on the officer; 

(5) a written summary of the officer's 
Qualifications Appraisal Interview; 

(6) documentation of the officer's educational 
achievements; 

(7) documentation of all criminal justice 
training completed by the officer; 

(8) the results of the officer's fingerprint 
record check; aed 

(9) a written summary of the officer's 
psychological examination results; and 

(10) ^ for the law enforcement officer, 
documentation on a commission-approved 
form that the officer has completed the 
minimum in-service training as required. 

Statutory Authority G.S. 17C-2; 17C-6. 

SECTION .0600 - EQUIPMEr«rr 
AND PROCEDURES 

.0601 APPROVED SPEED-MEASURING 
INSTRUMENTS 

(a) The following speed-measuring instruments 
are approved for radio microwave (radar) use, 
provided they are not equipped with dual antennas: 

(1) repealed 

(2) repealed 

(3) repealed 

(4) repealed 

(5) repealed 

(6) repealed 

(7) repealed 

(8) repealed 

(9) repealed 

(10) repealed 

(11) repealed 

(12) Kustom HR-8 Stationary 

(13) Kustom HR-12 Moving/Stationary 

(14) repealed 

(15) repealed 



Moving/Stationary 

Stationary 

Moving/Stationary 

Moving/Stationary 



Stationary 
2 (RAS) 



(16) Kustom KR- 11 

(17) MPH K-15 

(18) MPH K-55 

(19) MPH S-80 

(20) repealed 

(21) repealed 

(22) Decatur Ra-Gun 
(RAS & "N" Series) 

(23) repealed 

(24) Decatur Ra-Gun 1 and 
(Included in No. 22) 

(25) Kustom KR-10 SP Moving/Stationary 

(26) repealed 

(27) repealed 

(28) Kustom Falcon Stationary 

(29) Kustom Roadrunner Stationary 

(30) Kustom Trooper Moving/Stationary 

(31) Decatur MVR 715 Moving/Stationary 

(32) Decatur MVR 724 Moving/Stationary 

(33) Decatur Hunter Moving/Stationary 

(34) Kustom PRO- 1000 Moving/Stationary 

(35) MPH K15 II (86) Stationary 

(36) Applied Concepts 

Stalker Moving/Stationary 

(37) Decatur Genesis Moving/Stationary 

(b) The following speed-measuring instruments 
are approved for time-distance use provided that 
the instrument is not capable of accepting double 
time or double distance into the computer: 

(1) repealed 

(2) repealed 

(3) repealed 

(4) repealed 

(5) Vascar Plus Traffic Safety 

Systems, Inc. 

(c) All approved models and types of radio 
microwave (radar) speed-measuring instruments 
are made subject to and restricted as follows: 

(1) The automatic operate functions have 
been disconnected. 

(2) The automatic alarms, audio and visual 
have been disconnected. 

(3) The automatic locking functions have 
been disconnected. 

(4) TTie instrument does not provide an 
external control that would permit the 
adjustment or correction of the zero or 
calibration readings. 

(5) The "High Speed Lxick" function has 
been discormected. 

Note: The automatic functions that shall 
be discormected are any and all automatic 
violation alarm or lock capabilities that 
occur prior to the speed measuring 
instrument being manually locked by the 



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157 



PROPOSED RULES 



operator. 

(d) All speed measuring instruments, as herein 
defined, purchased on or after July 1, 1982 for 
speed enforcement shall meet or exceed 
performance specifications as provided in the 
"Model Performance Specifications for Police 
Traffic Radar Devices" as prepared by the Law 
Enforcement Standards Laboratory of the National 
Bureau of Standards and published by the National 
Highway Traffic Safety Administration, United 
States Department of Transportation (as in effect 
July 1, 1982) incorporated by reference herein and 
including any later amendments and editions as 
provided for in G.S. 150B-21.6. Copies of the 
document in this Rule are available from the 
agency address at the cost of reproduction. 

(e) Prior to inclusion as an approved speed 
measuring instrument, the manufecturer of said 
instrument shall certify in writing to the agency 
that said instrument meets or exceeds the standards 
of 12 NCAC 9C .0601(d) and provide a copy of a 
testing report or other document illustrating the 
method and results used in such certification. 

Statutory Authority G. S. 1 7C-6. 

.0603 TESTING: RADIO 

NDCROWAVE (RADAR) 

(a) The minimum specific test for radio 
microwave (radar) shall include: 

(1) Transmission Frequency Test. X-Band, 
K-Band, and Ka Band instruments, 
when operated at the standard supply 
voltage, the transmission frequency 
shall be within plus-minus .2 percent of 
the assigned frequency as specified in 
Subchapter 90.103, paragraph 22 of the 
F.C.C. rules and regulations. 

(2) The technician testing each radar 
instrument shall test each instrument 
against the operator calibration and 
testing for accuracy procedures required 
by G.S. 17C-6(a)(13) and G.S. 
8-50. 2(b)(4) for each approved 
instrument. 

(b) During the radio microwave (radar) accuracy 
test the technician shall test each instrument to 
determine that the: 

(1) Automatic operate function is 
disconnected. 

(2) Automatic alarms, audio and visual is 
disconnected. 

(3) Automatic locking capability is 
disconnected. 

(4) Instrument does not provide an external 



control that would permit the 
adjustment or correction of the zero or 
calibration readings. 

(5) The "High Speed Lock" function is 
disconnected. 

(6) If the above five functions have not 
been discoimected the radio microwave 
(radar) instrument shall not pass the 
test. 

Note: The automatic functions 
that shall be disconnected are any 
and all automatic violation alarm 
or lock capabilities that occur 
prior to the speed measuring 
instrument being manually locked 
by the operator, 
(c) Tuning Fork Accuracy Test: 

(1) Every tuning fork K-Band,^ and 
X-Band^ and Ka Band used to 
determine radio microwave (radar) 
accuracy shall be tested by a technician 
possessing at least a valid second class 
or general radiotelephone license from 
the Federal Communications 
Commission or a certification issued by 
organizations or committees endorsed 
by the Federal Communications 
Commission. This test shall be 
conducted in accordance with the 
requirements prescribed in G.S. 8-50.2. 

(2) When tested in accordance with (c)(1) 
of this Rule the frequency of vibration 
shall read within plus-minus .75 mph of 
that speed stamped on the tuning fork. 

(3) All tuning forks that are not stamped 
with a serial number for identification 
purposes shall be so impressed on the 
handle or heel, not on the tine portion, 
by the testing technician. The serial 
number is to be the same as the serial 
number on the radar amplifier, radar 
control cabinet, radar antenna or such 
other identifying number as assigned by 
the owning agency. 

Statutory Authority G. S. 1 7C-6. 

.0604 TESTING: TIME-DISTANCE 

(a) The minimum specific test for time-distance 
speed-measuring instruments shall include: 

(1) The time-distance device shall not be 
capable of accepting double time or 
double distance into the computer. 

(2) Vascar Plus by Traffic Safety Systems, 
Inc. Turn the power switch off, set all 



158 



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PROPOSED RULES 



thumbwheels to zero, turn power on, 
display shall read all eights (8). If any 
other numbers are displayed there is a 
malfunction which shall be corrected 
before proceeding further with the 
testing procedures. Then, with power 
on, dial into thumbwheels the distance 
to be used to calibrate, either a quarter 
mile 02500 or one half mile 05000. 
Enter an exact quarter or one half mile 
of distance from a pre-measured 
location on the highway by turning the 
distance switch on at the beginning of 
the pre-measured course and off at the 
end of the pre-measured course. Dial 
into the thumbwheels the calibration 
number now displayed in the readout. 
Turn power switch off then on and 
again travel through the pre-measured 
course turning the distance switch on at 
the beginning of the course and off at 
the end of the course. Enter 15.0 
seconds of time for one quarter mile 
distance or 30.0 seconds for one half 
mile distance. Press distance recall 
button. Display shall read distance you 
originally dialed into thumbwheels 
within plus-minus 1/4 of 1 percent. 
One quarter mile readout shall be 
between 03475 02494 and 03535 
02506 . One half mile readout shall be 
between 4 950 04988 and 05050 
05012. If distance readout is correct 
release the distance recall button. A 
mph reading of 60.0 mph plus-minus 1 
percent is acceptable (.6 mph 
plus-minus or 59.4 to 60.6). 
(b) Stopwatch Accuracy Test: 

(1) Every stopwatch used to enter a known 
amount of time into the time-distance 
speed-measuring instrument computer 
to determine accuracy shall be tested by 
a technician possessing at least a valid 
second class or general radiotelephone 
license from the Federal 
Communications Commission or a 
certification issued by organizations or 
committees endorsed by the Federal 
Communications Commission. This 
test shall be conducted in accordance 
with the requirements prescribed in 
G.S. 8-50.2. 

(2) The stopwatch shall be hand held, with 
a total time accumulation of at least five 
minutes. The stopwatch shall be 



accurate within plus-minus one second 
in five minutes. 

Statutory Authority G. S. 1 7C-6. 

SUBCHAPTER 9E - IN-SERVICE 
TRAINING PROGRAMS 

.0103 DEPARTMENT HEAD 
RESPONSIBILITIES 

The Department head is responsible for ensuring 
that the annual in-service firearms training is 
conducted according to minimum specifications as 
outlined in Rules 9E .0105 and 9E .0106. In 
addition, the Department head or designated 
representative: 

(1) shall review departmental policies 
regarding the use of force during the 
agency's annual in-service firearms 
training program. The Department head 
or designated representative shall certify 
that this review has been completed by 
submitting a commission-approved form 
to the Criminal Justice Standards 
Division; and 

(2) shall report to the Criminal Justice 
Standards Division once each calendar 
year a roster of all law enforcement 
officers who fail to successfully complete 
the annual in-service firearms training 
and qualification and shall certify that all 
law enforcement officers in the agency 
not listed did successfully complete the 
training. This roster shall reflect the 
annual in-service firearms training and 
qualification status of all law enforcement 
officers employed by the agency as of 
December 31 of each calendar year and 
shall be received by the Criminal Justice 
Standards Division no later than the 
following January 15th; and 

. (3) shall maintain in each officer's file 
documentation on a commission-approved 
form that the officer has completed the 
minimum annual in-service firearms 
training requirement; and 

(4) shall, where the officer fails to 
successfully qualify with any of the 
weapons specified in Rule 9E .0106(a) 
and (b), prohibit access to such 
weapon(s) until such time as the officer 
obtains qualification; and 

(5) shall, where the officer fails to 
successfully qualify with any of the 
weapons specified in Rule 9E .0106(d), 



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159 



PROPOSED RULES 



prohibit the possession of such weapon(s) 

while on duty or when acting in the 

discharge of that agency's official duties, 

and shall deny the officer authorization to 

carry such weapon(s) concealed when 

off-duty, except when the officer is on 

his own premises; and 

(6) shall, where the officer has access to any 

specialized or tactical weapon(s) not 

specifically covered in 12 NCAC 9E 

Rule .0106(a) and (b), use normally 

accepted practices and procedures to 

ensure that officers authorized to use 

such weapon(s) are qualified. Where the 

officer fails to qualify, the agency head 

or designated representative shall restrict 

access to such weapon(s). 

NOTE: Although not presently required by these 

Rules, the Commission recommends, supports and 

encourages the Department heads of law 

enforcement agencies to provide annual in-service 

training to all officers above and beyond that 

required in these Rules. 

Statutory Authority G.S. 17C-6; 17C-10. 

TITLE 13 - DEPARTMENT OF LABOR 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Labor intends to amend rules cited as 13 NCAC 
07F .0101. .0201, .0301, .0501 and .0502. 

1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on May 18, 1994 at the Conference 
Room/OSHA, Seaboard Building, 413 N. Salisbury 
Street, Raleigh, NC. 

MXeason for Proposed Action: Federal law re- 
quires that the NC Department of Labor, Division 
of Occupational Safety & Health adopt federal 
OSHA rules and standards. NCDOL/OSHA is 
adopting the identical Hazard Communication 
federal Final Rule with a clarification as to appli- 
cability. 

Lyomment Procedures: Persons wanting to pres- 
ent oral testimony at the hearing should provide a 
written statement of the proposed testimony to the 



Division 3 business days prior to the hearing date. 
Written comment period expires June 1, 1994. 
Direct all correspondence to Jill F. Cramer, 
NCDOL/OSHA, 413 N. Salisbury Street, Raleigh, 
NC 27603-5942. 

CHAPTER 7 - OSHA 

SUBCHAPTER 7F - ^ANDARDS 

SECTION .0100 - GENERAL INDUSTRY 
STANDARDS 

.0101 GENERAL EVDUSTRY 

(a) The provisions for the Occupational Safety 
and Health Standards for General Industry, Title 
29 of the Code of Federal Regulations Part 1910, 
are incorporated by reference except that as fol- 
lows: 

(1) within Subpart H - Hazardous Materi- 
als, 29 CFR 1910.120, Hazardous 
waste operations and emergency re- 
sponse, 29 CFR 1910.120(q)(6) is 
amended by adding a new level of 
training: 
"(vi) First responder operations _ 
plus level. First responders at 
operations plus level are individu- 
als who respond to hydrocarbon 
fuel tank leaks for purposes of 
stopping the release where the 
leaking tanks contain a hydrocar- 
bon fuel which is used to propel 
the vehicle on which the tank is 
located. Only those vehicles 
designed for highway use or those 
used for industrial, agricultural or 
construction purposes are cov- 
ered. First responders at the 
operations plus level shall have 
received at least training equal to 
first responder operations level 
and in addition shall receive 
training or have had sufficient 
experience to objectively demon- 
strate competency in the follow- 
ing areas and the employer shall 
so certify: 

(A) Know how to select and 
use proper specialized 
personal protective 
equipment provided to 
the first responder at 
operations plus level; 

(B) Understand basic 



160 



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PROPOSED RULES 



hazardous 
materials terms 
as they pertain 
to hydrocarbon 
ftiels; 

(C) Understand hazard and 
risk assessment 
techniques that pertain to 
gasoline, diesel fuel, 
propane and other 
hydrocarbon fuels; 

(D) Be able to perform 
control, containment, 
and/or confinement 
operations for gasoline, 
diesel fuel, propane and 
other hydrocarbon fuels 
within the capabilities of 
the available resources 
and personal protective 
equipment; and 

(E) Understand and know 
how to implement 
decontamination 
procedures for 
hydrocarbon fuels." 

Editor's Note: (lA) Proposed text is published 
in Volume 9, Issue 2 of the North Carolina 
Register . 

(2) Proposed text is published in Volume 8, 
Issue 18 of the North Carolina Register . 



(3) 
141 



Reserved. 
Subpart Z ;; 



Toxic and Hazardous 



Substances ;; incorporation by reference 
of modified final rule for 29 CFR 
1910.1200, Hazard Communication, 
including Appendices A through E. 
published in 59 PR (February 9, 1994) 
pages 6170 ; 6184 and adopted by the 
North Carolina Department of Labor on 
August i_i 1994. except that 
1910. 1200fb)(6)(ii) is amended to read: 
"(ii) Any hazardous substance as 
such term is defined by the 
Comprehensive Environmental 
Response. Compensation, and 
Liability Act (CERCLA) £42 
U.S.C. 9601 et seq). when 
regulated as a hazardous waste 
under that Act by the 
Environmental Protection 
Agenc y;" 
(b) The parts of the Code of Federal Regulations 
adopted by reference in this Subchapter shall not 
automatically include any subsequent amendments 



thereto, except as follows: 

(1) Subpart H — Hazardous Materials — 
technical corrections at 
1910.109(g)(4)(v), Explosives and 
Blasting Agents, published in 58 FR 
(March 29, 1993) page 16496 and 
adopted by the North Carolina 
Department of Labor on December 3 1 , 
1993; 

(2) Subpart H — Hazardous Materials — 
technical corrections at 
1910.110(d)(ll), Storage and Handling 
of Liquefied Petroleum Gases, 
published in 58 FR (March 19, 1993) 
page 15089 and adopted by the North 
Carolina Department of Labor on 
December 31, 1993; 

(3) Subpart J — General Environmental 
Controls — typographical and clarifying 
corrections at 1910.146, 
Permit-Required Confined Spaces, 
published in 58 FR (June 29, 1993) 
pages 34844 - 34851 and adopted by 
the North Carolina Department of 
Labor on September 24, 1993; 
corrections are to final rule for 
Permit-Required Confined Spaces as 
originally published in 58 FR 4462 
(January 14, 1993); 

(4) Subpart Z — Toxic and Hazardous 
Substances : 

(A) Revocation of exposure limits in 
"Final rule limits" columns of Table 
Z-l-A at 1910.1000, Air 
Contaminants, published in 58 FR 
(June 30, 1993) pages 35338 - 35351 
and adopted by the North Carolina 
Department of Labor on September 
24, 1993. 

(B) Correction to Table Z-3 Mineral Dust 
at 1910.1000, Air Contaminants, 
published in 58 FR (July 27, 1993) 
page 40191 and adopted by the North 
Carolina Department of Labor on 
December 31, 1993. 

(C) Typographical and technical 
corrections at 1910.1027, Cadmium, 
published in 58 FR (April 23, 1993) 
pages 21778 - 21787 and adopted by 
the North Carolina Department of 
Labor on September 24, 1993; 
corrections are to final rule for 
Occupational Exposure to Cadmium 
as originally published in 57 FR 
42101 (September 14, 1992). 



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161 



PROPOSED RULES 



(c) Copies of the applicable Code of Federal whom copies may be obtained. 
Regulations sections referred to in this Subchapter 

are available to the public. Please refer to 13 Statutory Authority G.S. 95-131; 95-133; 150B- 

NCAC 7A .0302 for the costs involved and from 21.6. 

SECTION .0200 - CONSTRUCTION STANDARDS 

.0201 CONSTRUCTION 

(a) The provisions for the Occupational Safety and Health Standards for Construction, Title 29 of the Code 
of Federal Regulations Part 1926, are incorporated by reference except that as follows: 

(1) Subpart C ;; General Safety and Health Provisions — personal Personal protective equipment, 
§1926. 28(a) is amended to read as follows: "(a) The employer is responsible for requiring the 
wearing of appropriate personal protective equipment in all operations where there is an exposure 
to hazardous conditions or where this part indicates the need for using such equipment to reduce 
the hazards to the employees." 

(2) Subpart D z^ Occupational Health and Environmental Controls ^i incorporation by reference of 
modified final rule for 29 CFR 1926.59. Hazard Communication, including Appendices A through 
R, published in 59 FR (February 9^ 1994) pages 6170 -_ 6184 and adopted by the North Carolina 
Department of Labor on August J_, 1994. except that 1926.59rb)(6)(ii) is amended to read: 

"(ii) Any hazardous substance as such term is defined by the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601 et seq). when 
regulated as a hazardous waste under that Act by the Environmental Protection Agency;" 

(b) The parts of the Code of Federal Regulations incorporated by reference in this Subchapter shall not 
automatically include any subsequent amendments thereto, except as follows: 

(1) Incorporation of existing General Industry Standards (Part 1910) applicable to construction work 
into the Safety & Health Regulations for Construction (Part 1926). Final rule as published in 58 
FR (June 30, 1993) pages 35076-35311 and adopted by the North Carolina Department of Labor 
on November 1, 1993; correction to Appendix D to §1926.1147 as published in 58 FR (July 28, 
1993) page 40468 and adopted by the North Carolina Department of Labor on December 31, 1993. 
Subpart C -- General Safety and Health Provisions, 

1926.33 Access to employee exposure and medical records. 

1926.34 Means of egress. 

1926.35 Employee emergency action plans. 
Subpart D — Occupational Health and Environmental Control, 

1926.64 Process safety management of highly hazardous chemicals. 

1926.65 Hazardous waste operations and emergency response. 

1926.66 Criteria for design and construction for spray booths. 
Subpart E — Personal Protective Equipment and Life Saving Equipment, 

1926.95 Criteria for personal protective equipment. 

1926.96 Occupational foot protection. 

1926.97 Protective clothing for fire brigades. 

1926.98 Respiratory protection for fire brigades. 
Subpart F — Fire Protection and Prevention, 

Fixed Fire Suppression Equipment 

1926.156 Fire extinguishing systems, general. 

1926.157 Fire extinguishing systems, gaseous agent. 
Other Fire Protection Systems 

1926.158 Fire detection systems. 

1926.159 Employee alarm systems. 
Subpart I — Tools - Hand and Power, 

1926.306 Air receivers. 

1926.307 Mechanical power-transmission apparatus. 
Subpart L -- Scaffolding, 

1926.453 Manually propelled mobile ladder stands and scaffolds (towers). 
Subpart Y -- Commercial Diving Operations, 



162 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



General 

1926.1071 Scope and application. 

1926.1072 Definitions. 
Personnel Requirements 

1926.1076 Qualifications of dive team. 
General Operations Procedures 

1926.1080 Safe practices manual. 

1926.1081 Pre-dive procedures. 

1926.1082 Procedures during dive. 

1926.1083 Pbst-dive procedures 
Specific Operations Procedures 

1926.1084 SCUBA diving 

1926.1085 Surface-supplied air diving 

1926.1086 Mixed-gas diving. 

1926.1087 Liveboating. 

Equipment Procedures and Requirements 

1926.1090 Equipment. 
Recordkeeping 

1926.1091 Recordkeeping requirements. 

1926.1092 Effective date. 

Appendix A to Subpart Y - Examples of Conditions Which May Restrict or Limit Exposure 
to Hyperbaric Conditions. 

Appendix B to Subpart Y - Guidelines for Scientific Diving. 
Subpart Z - Toxic and Hazardous Substances 
1926.1100-1926.1101 [Reserved]. 

1926.1102 Coal tar pitch volatiles; interpretation of term. 

1926.1103 4-Nitrobiphenyl. 

1926.1104 alpha-Naphthylamine. 

1926.1105 [Reserved]. 

1926.1106 Methyl chloromethyl ether. 

1926.1107 3,3'-Dichlorobenzidine [and its salts]. 

1926.1108 bis-Chloromethyl ether. 

1926.1109 beta-Naphthylamine. 

1926.1110 Benzidine. 

1926.1111 4-Aminodiphenyl. 

1926. 1 1 12 Ethyleneimine. 

1926.1113 beta-Propiolactone. 

1926. 1114 2-Acetylaminofluorene. 

1926.1115 4-Dimethylaminoazobenzene. 

1926. 1116 N-Nitrosodimethylamine. 

1926.1117 Vmyl chloride. 

1 926 .1118 Inorganic arsenic. 

1926.1128 Benzene. 

1926.1129 Coke emissions. 

1926. 1 144 1 ,2-dibromo-3-chloropropane. 

1926.1145 Acrylonitrile. 

1926.1147 Ethylene oxide. 

1926.1148 Formaldehyde. 

Appendix A to Part 1926. Designations for General Industry Standards Incorporated Into Body 
of Construction Standards; 

(2) Subpart D — Occupational Health and Environmental Controls, 29 CFR 1926.62, Lead in 
Construction. Interim final rule and appendices A through D as published in 58 FR (May 4, 1993) 
pages 26627-26649 and adopted by the North Carolina Department of Labor on September 6, 1993; 

(3) Subpart D — Occupational Health and Environmental Controls — typographical and technical 
corrections at 1926.63, Cadmium, published in 58 FR (April 23, 1993) pages 21778 - 21780 and 



9:3 NORTH CAROLINA REGISTER May 2, 1994 163 



PROPOSED RULES 



21787 and adopted by the North Carolina Department of Labor on September 24, 1993; corrections 

are to final rule for Occupational Exposure to Cadmium as originally published in 57 FR 42101 

(September 14, 1992); 
(4) Subpart Z — Toxic and Hazardous Substances — correction to 29 CFR 1926 by adding text and 

redesignation for Cadmium as published in 59 FR (January 3, 1994) page 215 and adopted by the 

North Carolina Department of Labor on April 15, 1994. 
(c) Copies of the applicable Code of Federal Regulations sections referred to in this Subchapter are available 
for public inspection at the North Carolina Department of Labor, Division of Occupational Safety and Health. 
A single copy may be obtained from the Division at no cost; each additional copy may be obtained at a cost 
of eight dollars and forty-eight cents ($8.48) (inclusive of tax). 



Statutory Authority G.S. 95-131; 150B-2I.6. 



SECTION .0300 - AGRICULTURE 
STANDARDS 

.0301 AGRICULTURE 

(a) The provisions for the Occupational Safety 
and Health Standards for Agriculture, Title 29 of 
the Code of Federal Regulations Part 1928, are 
incorporated by reference except tbat as follows: 

(1) Subpart B -- Applicability of Standards 
- 29 CFR 1928.21(a)(5). incorporation 
by reference of modified final rule for 
29 CFR 1910. 12(K), Hazard Communi- 
cation, including Appendices A through 
Ei published m 59 FR (February 9^ 
1994) pages 6170 - 6184 and adopted 
by the North Carolina Department of 
Labor with amendments at 1_3 NCAC 
07F0101(a) on August 1, 1994. 

(2) ifi Subpart I - General environmental 
controls - 29 CFR 1928.110 [Field 
Sanitation], the scope shall not be limit- 
ed to any specific number of employ- 
ees. 

(b) The parts of the Code of Federal Regulations 
incorporated by reference in this Subchapter shall 
not automatically include any subsequent amend- 
ments thereto, except as follows: Subpart M — 
Occupational Health, 29 CFR 1928.1027, Cadmi- 
um. Final rule and appendices A through F as 
published in 58 FR (April 23, 1993) pages 21778 - 

21780 and 21787 - 21838 and adopted by the 
North Carolina Department of Labor on September 
24, 1993. 

(c) Copies of the applicable Code of Federal 
Regulations sections referred to in this Subchapter 
are available for public inspection at the North 
Carolina Department of Labor, Division of Occu- 
pational Safety and Health. A single copy may be 
obtained at no cost. 



SECTION .0500 - MARmME CTANDARDS 

.0501 SHIPYARD EMPLOYMENT 

(a) The provisions for the Occupational Safety 
and Health Standards for Shipyard Employment, 
Title 29 of the Code of Federal Regulations Part 
1915, are incorporated by reference in aooordonoo 
with G.S. 150B 21 .6, and except that the modified 
final rule for 29 CFR 1915.1200. Hazard Commu- 
nication, including Appendices A through E^ 
published in 59 FR (February 9, 1994) pages 6170 
; 6184 and adopted by the North Carolina Depart- 
ment of Labor on August l^ 1994, is amended at 
1915.1200rb)(6)(ii) to read: "(ii) Any hazardous 
substance as such term is defined by the Compre- 
hensive Environmental Response. Compensation, 
and Liability Act (CERCLA) (42 U.S.C. 9601 et 
seq). when regulated as a hazardous waste under 
that Act by the Environmental Protection Agency;" 

(h) The provisions of 29 CFR 1915 shall apply 
only to public sector employees of local govern- 
ments or of the State of North Carolina. 

{b^(c) The parts of the Code of Federal Regula- 
tions incorporated by reference in this Subchapter 
shall not automatically include any subsequent 
amendments thereto, except as follows: Incorpo- 
ration of Subpart Z — Toxic and Hazardous Sub- 
stances ~ into the Occupational Safety and Health 
Standards for Shipyard Employment (Part 1915). 
Final rule with technical amendments and redesig- 
nation as published in 58 FR (July 1, 1993) pages 
35512 - 35718 and adopted by the North Carolina 
Department of Labor on December 31, 1993. 

fe)(d) Copies of the applicable Code of Federal 
Regulations sections referred to in this Subchapter 
are available for public inspection at the North 
Carolina Department of Labor, Division of Occu- 
pational Safety and Health. A single copy may be 
obtained from the Division at no cost. 



Statutory Authority G.S. 95-131; 150B-21.6. 



Statutory Authority G.S. 95-131; 150B-21.6. 



164 



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PROPOSED RULES 



,0502 MARINE TERMINALS 

(a) The provisions of the Occupational Safety 
and Health Regulations for Marine Terminals, 
Title 29 of the Code of Federal Regulations Part 
1917, are incorporated by reference in accordance 
with G.S. 15QB 21.6. and except that the modified 
final rule for 29 CFR 1917.28 . Hazard Communi- 
cation, including Appendices A through E, pub- 
lished in 59 PR (February 9, 1994) pages 6170 - 
6184 and adopted by the North Carolina Depart- 
ment of Labor on August j_j 1994, is amended at 
1917.28(b)(6')(ii) to read: "(ii) Any hazardous 



substance as such term is defined by the Compre- 
hensive Environmental Response, Compensation, 
and Liability Act (CERCLA)(42 U.S.C. 9601 et 
seq), when regulated as a hazardous waste under 
that Act by the Environmental Protection Agency;" 

£bl The provisions of 29 CFR 1917 shall apply 
only to public sector employees of local govern- 
ments or of the State of North Carolina. 

^(c) The parts of the Code of Federal Regula- 
tions incorporated by reference in this Subchapter 
shall not automatically include any subsequent 
amendments thereto. 

fe)£d) Copies of the applicable Code of Federal 
Regulations sections referred to in this Subchapter 
are available for public inspection at the North 
Carolina Department of Labor, Division of Occu- 
pational Safety and Health. A single copy may be 
obtained from the Division at no cost. 

Statutory Authority G.S. 95-131; 150B-21.6. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

I\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Division of Vhter 
Resources intends to adopt rules cited as 15A 
NCAC2K .0501 - .0504. 

Ihe proposed effective date of this action is 
September 1, 1994. 

1 he public hearings will be conducted at: 

7:00-9:00 p.m. 

May 18, 1994 
Council Chamber 

City of Hickory 

76 N. Center St. 

Hickory, NC 



3:00-5:00 p.m. 

7:00-9:00 p.m. 

May 25, 1994 

Ground Floor Hearing Room 

Archdale Building 

Raleigh, NC 

MXeason for Proposed Action: To comply with 
House Bill 394, amending the Dam Safety Law, 
G.S. 143-21 5. 24-. 33, which requires the adoption 
of rules for minimum flows to maintain aquatic 
habitat downstream of dams subject to the law. 
ISA NCAC 2K .0501 - Defines aquatic habitat 
rating terms and procedures. 
ISA NCAC 2K . 0S02 - Required minimum flows 
for dams which are not small hydroelectric pro- 
jects. 

ISA NCAC 2K .0503 - Required minimum flow for 
small hydroelectric projects. 

ISA NCAC 2K .0504 - Monitoring requirements 
for minimum flows. 

i^omment Procedures: All persons interested in 
or potentially affected by this matter are invited to 
attend the public hearings. Written comments may 
be presented at the public hearings or submitted 
through June 8, 1994. Please submit comments 
to: Mr. John D. Sutherland, Division of Witer 
Resources, P.O. Box 27687, Raleigh NC 27611- 
7687. Comments may also be presented orally at 
the hearings. So that all persons desiring to speak 
may have an opportunity to do so, the length of 
verbal statements may be limited at the discretion 
of the hearing oflicers. 

THE ENVIRONMENTAL MANAGEMENT 
COMMISSION IS CONSIDERING ALTERNA- 
TIVE METHODS FOR ESTABLISHING MINI- 
MUM FLOWS FOR THE BYPASSED REACHES 
OF HYDROELECTRIC PROJECTS THAT 
WOULD RESULT IN HIGHER OR LOWER 
MINIMUM FLOWS THAN THOSE 
DESCRIBED IN RULE .0503, INCLUDING 
FLOWS RANGING DOWN TO THE SEVEN- 
DAY, TEN-YEAR LOW FLOW (7Q10). THE 
COMMISSION INVITES THE PUBLIC TO 
COMMENT ON THE BENEFITS AND COSTS 
OF THE MINIMUM FLOWS IN THE PRO- 
POSED RULE, AS WELL AS ON THOSE OF 
HIGHER AND LOWER MINIMUM FLOWS. 
THE ENVIRONMENTAL MANAGEMENT 
COMMISSION MAY ADOPT RULES ON MINI- 
MUM RELEASES FROM DAMS THAT DIFFER 



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165 



PROPOSED RULES 



FROM THE REVISIONS PROPOSED HEREIN, 
IF THE EMC DETERMINES THAT THE FI- 
NAL ADOPTED RULES ARE A LOGICAL 
OUTGROWTH OF THE NOTICE, THE PUBLIC 
HEARINGS, AND THE HEARING COMMENTS 
RECEIVED, AND THAT THE CHANGES ARE 
NOT A SUBSTANTML CHANGE FROM WHAT 
WAS PROPOSED. 

Ihese Rules affect the expenditure or revenues 
of local funds. A fiscal note was submitted to the 
Fiscal Research Division on March 4, 1994, 
OSBM on March 4, 1994, N.C. League of Mu- 
nicipalities on March 4, 1994, and N.C. Associa- 
tion of County Commissioners on March 4, 1994. 

CHAPTER 2 - ENVIROIVME>n'AL 
MANAGEMENT 

SUBCHAPTER 2K - DAM SAFETY 

SECTION .0500 - MINIMUM STREAM 
FLOWS TO MAINTAIN AQUATIC HABITAT 

.0501 DEFINITIONS 

(a) Aquatic habitat is divided into three classes 
; "poor." "moderate." and "good." 

(1) Streams with poor aquatic habitat are 
those which are rated "poor" for two or 
more of the following three characteris- 
tics: 

(A) Substrate ; 

(B) Cover ; and 

(C) Macro-invertebrate organisms . 

(2) Streams with moderate aquatic habitat 
are those which exhibit physical condi- 
tions and biota which are intermediate 
between the poor and good categories, 
and for which the fish assemblage 
rating is not "good . " 

(3) Streams with good aquatic habitat are 
those which receive at least two "good" 
ratings when the substrate, cover, and 
macro-invertebrate organism character- 
istics are evaluated . The fish assem- 
blage also must receive a "good" rat- 
ing . 

fb) Cover means objects within or overhanging 
the stream channel which provide shelter for 
aquatic organisms. "Good" cover occurs when 
cover is widespread and diverse. "Poor" cover 
occurs when the amount of cover is small or non- 
existent . 

(c) Substrate means the predominant particle 



size of the material which makes up the stream 
bed. "Good" substrate is composed of at least 50 
percent clean substrate with gravel or cobble. 
"Poor" substrate is composed of at least 80 percent 
silt, sand, or smooth bedrock . 

(d) The macro - invertebrate organisms of the 
affected reach are rated as "good" if the affected 
reach is rated good or excellent in the Division of 
Environmental Management's (DEM) biological 
monitoring database, or by a site-specific survey 
which fo 1 1 o ws DEM procedures. 
Macro-invertebrates are rated "poor" if the reach 
is rated fair or poor in DEM's biological 
monitoring database, or by a site-specific survey 
which follows DEM procedures . 

(e) The fish assemblage rating is based on the 
North Carolina Index of Biotic Integrity (IBI). 
Existing ratings from the DEM biological 
monitoring database will be used where available. 
If no rating exists, then a site-specific survey will 
be conducted following DEM procedures. The 
fish assemblage will be rated as "good" if the IBI 
rating is good, good-excellent, or excellent. The 
fish assemblage will be rated as "poor" if the IBI 
rating is poor or lower . 

(f) The affected reach of stream means that 
section of a stream downstream of a dam which 
experiences significant changes in hydrology. The 
exact delineation of the affected reach will be 
site-specific and depend on factors including, but 
not limited to: 

(1) volume of storage in the impoundment ; 
upstream and downstream hydrologic 
characteristics of the stream; 



141 



withdrawals from the impoundment; 

and 

downstream point source discharges to 

the stream . 
For the purpose of evaluating aquatic habitat, the 
affected reach of a stream does not include any 
portion which is in the backwater of a downstream 
dam when the level of that downstream 



impoundment is at normal pool . 

(g) " Special case" streams are those which 
exhibit at least one of the following characteristics : 

(1) designation as Outstanding Resource 
Waters ; 

(2) populations of aquatic species listed as 
threatened or endangered by the U.S. 
Fish and Wildlife Service, or species 
which are listed as threatened or 
endangered by the N.C. Wildlife 
Resources Commission ; 

(3) self-sustaining populations of wild 
trout; or 



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PROPOSED RULES 



(4) exceptional fishery resources as Statutory Authority. G.S. 143-215.24; 143-215. 25; 

determined by the Wildlife Resources 143-215.31; 143-215.32; 143-215.33; 143-215.36. 

Commission . 

.0502 REQUIRED MINIMUM FLOW FOR DAMS (NOT SMALL HYDRO PROJECTS) 

(a) A dam operated by a small power producer, as defined in G.S. 62-3 (27a). that diverts water from 4.000 
feet or less of the natural stream bed, is exempt from this Rule . 

(b) A dam proposed for a small stream with a mean annual daily flow less than or equal to 3.0 cubic feet 
per second (cfe) shall be subject to the following review process in determining the required minimum flow : 

(1) If the mean annual daily flow is less than or equal to 3^ cfe and the 7-day. 10-year low flow 
(7Q10) is less than or equal to 0^ cfe^ and if there are no existing point source discharges of 
wastewater to the affected stream reach; then no minimum release will be required . 

(2) If the mean annual daily flow is less than or equal to 3.0 cfe and the 7010 is less than or equal to 
0.2 cfe; and one or more existing point source discharges of wastewater enter the afi'ected stream 
reach; then the minimum release shall be equal to the 7Q10 . 

(3) If the mean annual daily flow is less than or equal to 3.0 cfe and the 7Q10 is greater than 0.2 cfe. 
then the minimum release shall be equal to the 7Q10 . 

(c) If the mean annual daily flow is greater than 3.0 cfe. then the following procedures shall be used to 
determine the minimum flow requirement : 

(1) The minimum flow for a dam on a stream with poor aquatic habitat shall be the 7Q10 flow 
determined by using U.S. Geological Survey procedures. 

(2) The minimum flow for a dam on a stream with moderate aquatic habitat shall be determined using 
regression equations provided by the Department. One type of equation requires a continuous 
record of flows from a gaging station, and another type does not require this flow record. When 
it is possible to use either type of equation, then the more statistically accurate formula shall be 
used. 

(A) The regression equations will vary according to the geographic region of the state in which the 
stream is located. The geographic region shall be determined from the North Carolina Atlas 
published by the University of North Carolina Press . 

(B) If regression formulas are not available for a region, then a field study shall be conducted by the 
applicant to determine the required minimum flow. Such a field study shall be subject to the 
review and approval of the Department . 

(C) All flows used in regression equations shall be measured in cubic feet per second, all drainage 
areas shall be measured in square miles, and all logarithmic expressions shall refer to base 10 
logarithms . 

(D) The regression equation used to determine the minimum flow for a stream in the piedmont which 
exhibite moderate aquatic habitat, and for which no suitable stream gage record existe. shall be 
as follows : 

LRF = (3.204 X M) - (2.618 x D) 



LRF ^ LOG of regression flow 

M ^ LOG of mean annual daily flow 

jD ^ LOG of drainage area 



The regression flow (RF) is calculated by raising 10 to the power of the LRF. 
If the drainage area is greater than 95 square miles , the required minimum flow is \A^ x RF. 
Otherwise the required minimum flow is equal to RF . 
(E) The regression equation used to determine the minimum flow for a stream in the piedmont which 
exhibits moderate aquatic habitat, and for which a suitable stream gage record does exist, shall 
be as follows : 

LRF ^ (0.812 X .M} + (8.111 x E85) 
- (4.806 X £92} - (3.275 x E95) 
LRF ^ LOG of regression flow 



9:3 NORTH CAROLINA REGISTER May 2, 1994 167 



PROPOSED RULES 



M ^ LOG of mean annual daily flow 
E85 ^ LOG of 85% annual exceedance flow 
E92 ^ LOG of 92.5% annual exceedance flow 
E95 ^ LOG of 95% annual exceedance flow 

The regression flow fRF) is calculated by raising 10 to the power of the LRF . 
The required minimum flow is \_A x RF. 

(3) The minimum flow for a dam on a special case stream, or on a stream with good aquatic habitat, 
shall be determined by a site-specific instream flow study. This study shall be conducted by the 
applicant or his consultants, and shall be subject to approval by the Department . 

(A) A plan of study shall be developed in consultation with the De partment and submitted to the 
Department for review and approval prior to commencement of the study . 

(B) The Department will have the option of participating in the collection of all field data and shall 
be notified prior to the collection of any set of data . 

(C) The Department may review the field data and results of these studies to determine the stream 
flow needed to maintain aquatic habitat . 

(4) If the applicant or owner disputes the minimum flow determined for streams with poor or moderate 
aquatic habitat, he may undertake a site-specific field study subject to the review and approval of 
the Department . The final minimum release required will not exceed the amount determined by 
the procedures described in this Rule . 

(5) The minimum release schedule for a water supply reservoir shall include provisions for reductions 
in the minimum flow which coincide with reductions in the usable v.'ater supply storage remaining 
in the impoundment and with reductions in the amount of water withdrawn from the reservoir. 

(A) This system of tiered releases shall apply to new water supply reser\'oirs and any existing \».ater 
supply reservoirs for which the minimum release is revised . 

(B) The exact percentage of storage which triggers reductions in minimum flow will depend on 
several site-specific factors, including, but not limited to: 

£i] size of the reservoir ; 

(ii) rate of the water supply demand ; 
(iii) hydrologic characteristics of the impounded stream; 

(iv) the impoundment levels which result in local efi'orts to reduce water usage through 
conservation measures . 

(C) At least three levels of minimum releases shall be included in the release schedule for a water 
supply reservoir . 

(D) When usable v-ater supply storage has been reduced to a level which triggers the first reduction 
in minimum flov.'. then the a\'erage daily water withdrawal shall be reduced by a^ least 10 percent 
from the average daily withdrav.'al prior to the reduction in the minimum release. The water 
supply operator shall accomplish this reduction in withdrawal within two weeks of the reduction 
in the minimum release . 

(E) When usable water supply storage has been reduced to a level which triggers the second reduction 
in minimum flov.; then the a\'erage daily water withdrawal shall be reduced by at_ least 20 percent 
from the a\'erage daily withdrawal prior to the first reduction in the minimum release. The u-ater 
supply operator shall accomplish this further reduction in withdrawal within two weeks of the 
second reduction in the minimum release . 

(F) The Vrater system operator shall document reduction in water withdrawals by submitting reports 
of daily v.ater withdrawals to the Department. These shall be submitted every two weeks for as 
long as the minimum release is reduced below the amount normally required . 

(G) A conceptual e.xample is shown in the table below. However, the percentages of 'A'ater supply 
storage which trigger the changes in minimum release will be site-specific according to the factors 
described in Part (B) of this Paragraph . 



REMAINING USABLE WATER 
LEVEL SLTPLY STORAGE 

1 between 70% and 100% 

2 between 40% and 70% 



MINIMUM 
RELEASE 

A 

B 



WATER 
CONSERVAnON 

10% 



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PROPOSED RULES 



below 40% 



20% 



A = normal minimum release determined by a field study , regression equation, or use of ^ 7010 

B = intermediate reduction in minimum release 

C = low minimum release equal to no more than the 7010 

(6) An existing dam which was built subject to review under the National or the State Environmental 
Policy Acts, and for which a minimum release has been established, will not have its minimum 
release changed under this Rule. However, the Department may review and adjust the minimum 
flow released by any other existing dam if there is evidence of any of the following conditions 
downstream of that dam. 

(A) water quality standards not being maintained : 

{B} water quality classifications which are being only partially supported or not being supported: or 

(C) aquatic habitat not being maintained. 

(7) If the minimum release required from an existing water supply reservoir js^ reviewed by the 
Department, any increase in minimum flow will be determined on a case-by-case basis in con- 
sideration of the following factors, including, but not limited to: 

(A) availability of water to meet existing demands : 

(B) rate of growth in water demand: 

(C) planned development of alternative sources of water supply: 

(D) structural difficulties : 

(E) capital costs: and 

(F) anticipated improvements in water quality and aquatic habitat in the afl^ected reach resulting from 
the proposed change in minimum flow . 

£i} The change in minimum release shall be set no higher than an amount which would reduce 
the water supply safe yield, as determined by standard accepted engineering practices, by 
more than 10 percent. 

(ii) If a new minimum release requirement is being delayed until a new source of water supply 
is developed, then this delay shall not exceed a period of five years from the written 
notification that a new minimum release will be required. This period may be extended by 
a pproval of the Environmental Management Commission . 

Statutory Authority. G.S. 143-215.24; 143-215.25; 143-215.31; 143-215.32; 143-215.33; 143-215.36. 



.0503 REQUIRED MINIMUM FLOW FOR 
SMALL HYDROELECTRIC 
PROJECTS 

(a) This Section applies only to a dam operated 
by a small power producer, as defined in G.S. 
62-3 (27a). that diverts water from 4.000 feet or 
less of ^ natural stream bed. The length of the 
bypassed reach shall be measured from the toe of 
the dam to the point where the diverted water 
re-enters the natural channel, following the center- 
line of the natural channel . 

(b) The minimum release for a hydroelectric 
project subject to this Rule will be determined 
according to the procedures described in Subpara- 
graphs (b)(l)-(5) of this Rule. If at any time the 
inflow just upstream of the dam is less than the 
minimum flow required in the bypassed reach, 
then the minimum flow may be reduced to a level 
equal to this inflow . 

(1) If the aquatic habitat in ^ bypassed 
reach is rated poor, then the minimum 



release to the bypassed reach shall be 
determined as follows : 

(A) If the 7O10 is less than or equal to 10 
percent of the mean annual daily 
flow, then the minimum release to the 
bypassed reach shall be the 7010 
flow. 

(B) If the 7010 is greater than 10 percent 
of the mean annual daily flow, and 
there are no existing point source 
discharges of wastewater to the by- 
passed reach, then the minimum 
release to the bypassed reach shall be 
0.8 times the 7010. 

(C) If the 7010 is greater than 10 percent 
of the mean annual daily flow, and 
one or more existing point source 
discharges of wastewater enter the 
bypassed reach, then the minimum 
release to the bypassed reach shall be 
the 7010 flow. 



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169 



PROPOSED RULES 



121 



£A} 



im 



IQ 



m 



IB) 



14} 



If the bypassed reach does not have an 
aquatic habitat rating of "poor." is not 
on a special case stream , and is located 
in the piedmont region, as defined in 
Rule .0502(c)(2)(A) of this Section, 
then the minimum release to the by- 
passed reach shall be determined as 
follows: 
If the 7Q10 is less than or equal to six 
percent of the mean aimual daily 
flow, then the minimum release to the 
bypassed reach shall be 3^ times the 
7Q1Q flow. 

If the 7010 is greater than six percent 
of the mean annual daily flow, and 
less than or equal to 10 percent of the 
mean annual daily flow, then the 
minimum release to the bypassed 
reach shall be 2^ times the 7Q10 
flow. 

If the 7Q10 is greater than 10 percent 
of the mean annual daily flow, then 
the minimum release to the bypassed 
reach shall be i^ times the 7Q10 
flow. 
The minimum flow determined by the 
procedures described in Subparagraphs 
(b)(1) and i2} of this Me may be 
adjusted downward by the Department 
based on factors including, but not 
limited to: 
the type of aquatic habitat present in 
the bypassed reach: 
the length of the bypassed reach. 
If the applicant or owner disputes the 
minimum flow determined by tlie pro- 
cedures described in Subparagraphs 
(b)(1) and {2} of this Rule, ]ie may 
undertake a site-specific field study 
subject to tlie review and approval of 
the Department. The final minimum 
release required will not exceed the 
amount determine d by the procedures 
described in this Section. 
The minimum flow for a dam on a 
or on a stream 



special case stream, _ 

located in the mountain region, as 
defined in Rule .0502(c)(2)(A) of this 
Section, which does not exhibit poor 
aquatic habitat; shall be determined by 
a site-specific instream flow study. 
This study shall be conducted by the 
applicant or his consultants, and shall 
be subject to approval by the Depart- 
ment. 



(A) A plan of study shall be developed in 
consultation with the Department and 
submitted to the Department for re- 
view and approval prior to 
commencement of the study. 

(B) The Department will have the option 
of participating in the collection of all 
field data and shall be notified prior 
to the collection of any set of data. 

(C) The Department may review the field 
data and results of these studies to 
determine the stream flow needed to 
maintain aquatic habitat . 

Statutory Authority. G.S. 143-215.24; 143-215. 25; 
143-215. 31; 143-215. 32; 143-215. 33; 143-215. 36. 



.0504 MONITORING OF MINIMUM FLOW 
REQUIREMENTS 

(a) An owner of a dam with a minimum flow 
requirement greater than 1.0 cfe shall install, 
calibrate, and maintain one or more stream staff" 
gages following procedures described in U.S. 



Geological Survey Water Supply Paper 2175, 
"Measurement and Computation of Streamflow. " 
Plans for such gages shall be submitted to the 
Department for approval prior to installation. Staff " 
gages shall be calibrated to indicate the water 
surface elevations which correspond to the re- 
quired flows. Calibration shall be verified at least 
every two years. All initial calibration and 
re-calibration measurements, including field data, 
shall be provided to the Department within 30 days 
of completion. 

(b) If the minimum release from a dam is less 
than or equal to _L0 cfe, then an accurately cali- 
brated release mechanism such as a gate or pipe 
opening shall be acceptable in lieu of a stafl" gage. 
Plans for making the required release shall be 
submitted to the Department for review and ap- 
proval prior to construction, repair, or modifica- 
tion of the dam. 

(c) An owner of a dam who does not comply 
with a minimum flow requirement may be required 
to install automated gaging which continuously 
monitors flow. Records from this type of gage 



shall be provided to the Department upon request, 
for the time period being investigated. 

(d) Minimum release requirements may be 
temporarily modified or suspended for reasons 
including pre-scheduled maintenance or construc- 
tion involving the dam. The Department must 
approve a written request for a temporary change 
in the minimum flow requirement prior to any 



170 



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PROPOSED RULES 



change in the minimum release. required minimum flow. If the schedule is not 

(e) Temporary reduction or cessation of the met, and the problem continues to cause violation 

minimum flow as a result of emergency conditions of the minimum flow requirement, then this viola- 

or equipment failure shall not constitute a violation tion may be subject to enforcement action. 
of the minimum flow requirement, so long as the 

event is reported to the Department within 48 Statutory Authority. G.S. 143-215.24; 143-215. 25; 

houre. The Department may set forth a schedule 143-215. 31; 143-215. 32; 143-215. 33; 143-215. 36. 
for correcting the problem and restoring the 

Notice is hereby given in accordance with G.S. 150B-21.2 that the Division of Solid Viiiste Management 
intends to amend rule cited as 15A NCAC 13B . 1628. 

1 he proposed effective date of this action is October 1, 1994. 

1 he public hearing will be conducted at 10:00 a.m. on May 23, 1994 at the Ground Floor Hearing Room, 
Archdale Bldg. , 512 North Salisbury Street, Raleigh, NC. 

Jxeasonfor Proposed Action: Amendment is necessary for North Carolina municipal solid waste facilities 
(MSWLFs) to comply with U.S. EPA financial assurance rule requirements published in the October 9, 1991 
Federal Register. The text proposed for deletion was published in error in the NC Register. Amendment will 
abo allow greater flexibility in determining the post-closure care period and the amount accumulated in the 
capital reserve fund for MSWLFs. 

(.comment Procedures: Any person requiring information may contact Mr Brad R. Rutledge, Division of 
Solid Vhste Management, Solid Wiste Section, Post Office Box 27687, Raleigh, NC 27611-7687, Telephone 
(919) 733-0692. Written comments must be submitted to the above address no later than June 1, 1994. 
Notice of an oral presentation may be given to the above address prior to the public hearing. 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13B - SOLID WASTE MANAGEMENT 

SECTION ,1600 - REQUIREMENTS FOR MUNICIPAL SOLID WASTE LANDFILL 

FACILITIES (MSWLFs) 

.1628 FINANCIAL ASSURANCE RULE 

(a) Applicability and Eff'ective Date. 

(1) The requirements of this Rule apply to owners and operators of all MSWLF units that receive 
waste on or after October 9, 1993, except owners or operators who are State or Federal 
government entities whose debts and liabilities are the debts and liabilities of a State or the United 
States. 

(2) The requirements of this Rule are eff'ective April 9, 1994. 

(3) MSWLF units owned and operated by units of local government or public authorities may elect to 
use a Capital Reserve Fund as described in Paragraph (e)(l)(I) of this Rule. 

(4) Owners and operators of all MSWLF units shall submit detailed cost estimates for closure and post- 
closure in accordance with Rule .1629 of this Section and this Rule; and, if necessary, for 
corrective action programs in accordance with Rule .1637 of this Section and this Rule. 

(5) Under this Rule, when documents are required to be placed in the operating record of a MSWLF 
unit, three copies shall be forwarded to the Division. 

(6) When allowable mechanisms as specified in Paragraph (e) of this Rule are used in combination to 



9:3 NORTH CAROLINA REGISTER May 2, 1994 171 



PROPOSED RULES 



provide financial assurance for closure, post-closure or corrective action, no more than one 
allowable mechanism shall be provided by the same financial institution or its corporate entities. 

(b) Financial Assurance for Closure. 

(1) The owner or operator shall have a detailed written estimate, in current dollars, of the cost of 
hiring a third party to close the largest area of all MSWLF units at any time during the active life 
in accordance with the closure plan required under Rule .1629 of this Section. A copy of the 
closure cost estimate shall be placed in the MSWLF's closure plan and the operating record. 

(A) The cost estimate shall equal the cost of closing the largest area of all MSWLF units at any time 
during the active life when the extent and manner of its operation would make closure the most 
expensive, as indicated by its closure plan as set forth in Rule .1629 of this Section. 

(B) During the active life of the MSWLF unit, the owner or operator shall annually adjust the closure 
cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the 
financial instrument(s). For owners and operators using the local government financial test, the 
closure cost estimate shall be updated for inflation within 30 days after the close of the local 
government's fiscal year and before submission of updated information to the Division. 

(C) The owner or operator shall increase the closure cost estimate and the amount of financial 
assurance provided under Subparagraph (2) of this Paragraph if changes to the closure plan or 
MSWLF unit conditions increase the maximum cost of closure at any time during the remaining 
active life. 

(D) The owner or operator may reduce the closure cost estimate and the amount of financial assurance 
provided under Subparagraph (2) of this Paragraph if the cost estimate exceeds the maximum cost 
of closure at any time during the remaining life of the MSWLF unit. Prior to any reduction of 
the closure cost estimate by the owner or operator, a written justification for the reduction shall 
be submitted to the Division. No reduction of the closure cost estimate shall be allowed without 
Division approval. The reduction justification and the Division approval shall be placed in the 
MSWLF's operating record. 

(2) The owner or operator of each MSWLF unit shall establish financial assurance for closure of the 
MSWLF unit in compliance with Paragraph (e) of this Rule. The owner or operator shall provide 
continuous coverage for closure until released from financial assurance requirements by 
demonstrating compliance with Rule .1627(c) of this Section for final closure certification. 

(c) Financial Assurance for Post-Closure Care. 

(1) The owner or operator shall have a detailed written estimate, in current dollars, of the cost of 
hiring a third party to conduct post-closure care for the MSWLF unit in compliance with the post- 
closure plan developed under Rule .1629 of this Section. The post-closure cost estimate used to 
demonstrate financial assurance in Subparagraph (2) of this Paragraph shall account for the total 
costs of conducting post-closure care, including annual and periodic costs as described in the post- 
closure plan over the entire post-closure care period and be placed in the operating record. 

(A) The cost estimate for post-closure care shall be based on the most expensive costs of post-closure 
care during the post-closure care period. 

(B) During the active life of the MSWLF unit and during the post-closure care period, the owner or 
operator shall annually adjust the post-closure cost estimate for inflation within 60 days prior to 
the anniversary date of the establishment of the financial instrument(s). For owners and operators 
using the local government financial test, the post-closure cost estimate shall be updated for 
inflation within 30 days after the close of the local government's fiscal year and before 
submission of updated information to the Division. 

(C) The owner or operator shall increase the post-closure care cost estimate and the amount of 
financial assurance provided under Subparagraph (2) of this Paragraph if changes in the post- 
closure plan or MSWLF unit conditions increase the maximum costs of post-closure care. 

(D) The owner or operator may reduce the post-closure cost estimate and the amount of financial 
assurance provided under Subparagraph (2) of this Paragraph if the cost estimate exceeds the 
maximum costs of post-closure care remaining over the post-closure care period. Prior to any 
reduction of the post-closure cost estimate by the owner or operator, a written justification for 
the reduction shall be submitted to the Division. No reduction of the post-closure cost estimate 
shall be allowed without Division approval. The reduction justification and the Division approval 
shall be placed in the MSWLF's operating record. 



172 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



(2) The owner or operator of each MSWLF unit shall establish, in a manner in accordance with 
Paragraph (e) of this Rule, financial assurance for the costs of post-closure care as required under 
Rule .1629 (c) of this Section. The owner or operator shall provide continuous coverage for post- 
closure care until released from financial assurance requirements for post-closure care by 
demonstrating compliance with Rule .1627(d) of this Section. 

(d) Financial Assurance for Corrective Action. 

(1) An owner or operator of a MSWLF unit required to undertake a corrective action program under 
Rule .1637 of this Section shall have a detailed written estimate, in current dollars, of the cost of 
hiring a third party to perform the corrective action. The corrective action cost estimate shall 
account for the total costs of corrective action activities as described in the corrective action 
program for the entire corrective action period. The owner or operator shall notify the Division 
that the estimate has been placed in the operating record. 

(A) The owner or operator shall annually adjust the estimate for inflation within 60 days prior to the 
anniversary date of the establishment of the financial instrument(s) until the corrective action 
program is completed in accordance with Rule .1637(f) of this Section. For owners and operators 
using the local government financial test, the corrective action cost estimate shall be updated for 
inflation within 30 days after the close of the local government's fiscal year and before 
submission of updated information to the Division. 

(B) The owner or operator shall increase the corrective action cost estimate and the amount of 
financial assurance provided under Subparagraph (2) of this Paragraph if changes in the corrective 
action program or MSWLF unit conditions increase the maximum costs of corrective action. 

(C) The owner or operator may reduce the corrective action cost estimate and the amount of financial 
assurance provided under Subparagraph (2) of this Paragraph if the cost estimate exceeds the 
maximum remaining costs of corrective action. Prior to any reduction of the corrective action 
cost estimate by the owner or operator, a written justification for the reduction shall be submitted 
to the Division. No reduction of the corrective action cost estimate shall be allowed without 
Division approval. The reduction justification and the Division approval shall be placed in the 
MSWLF's operating record. 

(2) The owner or operator of each MSWLF unit required to undertake a corrective action program 
under Rule .1637 of this Section shall establish, in a manner in accordance with Paragraph (e) of 
this Rule, financial assurance for the most recent corrective action program. The owner or 
operator shall provide continuous coverage for corrective action until released from financial 
assurance requirements for corrective action by demonstrating compliance with Rule .1637(f) and 
(g) of this Section. 

(e) Allowable Mechanisms. 

(1) The mechanisms used to demonstrate financial assurance under this Rule shall ensure that the funds 
necessary to meet the costs of closure, post-closure care, and corrective action for known releases 
shall be available whenever they are needed. Owners and operators shall choose from the options 
specified in Parts (A) through (I) of this Paragraph. 
(A) Trust Fund. 

(i) An owner or operator may satisfy the requirements of this Paragraph by establishing a trust 
fund which conforms to the requirements of this Part. The trustee shall be an entity which 
has the authority to act as a trustee and whose trust operations are regulated and examined 
by a Federal or State agency. A copy of the trust agreement shall be placed in the facility's 
operating record, 
(ii) Payments into the trust fund shall be made annually by the owner or operator over the term 
of the initial permit or over the remaining life of the MSWLF unit, in the case of a trust fund 
for closure or post-closure care, or over one-half of the estimated length of the corrective 
action program in the case of corrective action for known releases. This period is referred 
to as the pay-in period, 
(iii) For a trust fund used to demonstrate financial assurance for closure and post-closure care, the 
first payment into the fund shall be at least equal to the current cost estimate for closure or 
post-closure care, except as provided in Part (J) of this Paragraph, divided by the number of 
years in the pay-in period as defined in Part (A)(ii) of this Paragraph. The amount of 
subsequent payments shall be determined by the following formula: 



9:3 NORTH CAROLINA REGISTER May 2, 1994 173 



PROPOSED RULES 



Next Payment = CE-CV 



where CE Is the current cost estimate for closure or post-closure care (updated for inflation 
or other changes), CV is the current value of the trust fund, and Y is the number of years 
remaining in the pay-in period, 
(iv) For a trust fund used to demonstrate financial assurance for corrective action, the first pay- 
ment into the trust fund shall be at least equal to one-half of the current cost estimate for 
corrective action, except as provided in Part (J) of this Paragraph. The amount of subsequent 
payments shall be determined by the following formula: 

Next Payment = CE-CV 



where CE is the current cost estimate for corrective action (updated for inflation or other 
changes), CV is the current value of the trust fund, and Y is the number of years remaining 
in the pay-in period, 
(v) The initial payment into the trust fund shall be made before the initial receipt of waste or 
before the effective date of this Rule (April 9, 1994), whichever is later, in the case of 
closure and post-closure care, or no later than 120 days after the corrective action remedy has 
been selected in accordance with the requirements of Rule . 1636 of this Section. Subsequent 
payments shall be made no later than 30 days after each anniversary date of the first payment, 
(vi) If the owner or operator establishes a trust fund after having used one or more alternate 
mechanisms specified in this Paragraph, the initial payment into the trust fund shall be at least 
the amount that the fund would contain if the trust fund were established initially and annual 
payments made according to the specifications of this Part, 
(vii) The owner or operator, or other person authorized to conduct closure, post-closure care, or 
corrective action activities may request reimbursement from the trustee and Division for these 
expenditures. Requests for reimbursement shall be granted only if sufficient funds are 
remaining in the trust fund to cover the remaining costs of closure, post-closure care, or 
corrective action, and if justification and documentation of the cost is placed in the operating 
record. The owner or operator shall document in the operating record that reimbursement 
has been received. 

(viii) The trust fund may be terminated by the owner or operator only if the owner or operator 
substitutes alternate financial assurance as specified in this Rule or if no longer required to 
demonstrate financial responsibility in accordance with the requirements of Paragraph (b)(2), 
(c)(2) or (d)(2) of this Rule, 
(ix) The trust agreement shall be accompanied by a formal certification of acknowledgement. 
Schedule A of the trust agreement shall be updated within 60 days after any change in the 
amount of the current cost estimate covered by the agreement. 

(B) Surety Bond Guaranteeing Payment or Performance. 

(i) An owner or operator may demonstrate financial assurance for closure or post-closure care 
by obtaining a payment or performance surety bond which conforms to the requirements of 
this Part. An owner or operator may demonstrate financial assurance for corrective action 
by obtaining a performance bond or a payment bond which conforms to the requirements of 
this Part. The bond shall be efi'ective before the initial receipt of waste or before the effective 
date of this Rule, (April 9, 1994), whichever is later, in the case of closure and post-closure 
care, or no later than 120 days after the corrective action remedy has been selected in 
accordance with the requirements of Rule .1636 of this Section. The owner or operator shall 
place a copy of the bond in the operating record. The surety company issuing the bond shall, 
at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 
of the U.S. Department of the Treasury, 
(ii) The penal sum of the bond shall be in an amount at least equal to the current closure, 
post-closure care or corrective action cost estimate, whichever is applicable, except as 
provided in Paragraph (e)(l)(J) of this Rule. 



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PROPOSED RULES 



(iii) Under the terms of the bond, the surety shall become liable on the bond obligation when the 

owner or operator fails to perform as guaranteed by the bond, 
(iv) The owner or operator shall establish a standby trust fund. The standby trust fund shall meet 

the requirements of Paragraph (e)(1) (A) of this Rule except the requirements for initial 

payment and subsequent annual payments specified in Paragraph (e)(l)(A)(ii), (iii), (iv) and 

(v) of this Rule, 
(v) Payments made under the terms of the bond shall be deposited by the surety directly into the 

standby trust fund. Payments from the trust fiind shall be approved by the trustee and 

Division, 
(vi) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation 

by certified mail to the owner and operator and to the Division 120 days in advance of 

cancellation. If the surety cancels the bond, the owner or operator shall obtain alternate 

financial assurance as specified in this Rule, 
(vii) The owner or operator may cancel the bond only if alternate financial assurance is substituted 

as specified in this Rule or if the owner or operator is no longer required to demonstrate 

financial responsibility in accordance with Paragraph (b)(2), (c)(2) or (d)(2) of this Rule. 

(C) Letter of Credit. 

(i) An owner or operator may satisfy the requirements of this Paragraph by obtaining an 
irrevocable standby letter of credit which conforms to the requirements of this Part. The 
letter of credit shall be effective before the initial receipt of waste or before the effective date 
of this Rule (April 9, 1994), whichever is later, in the case of closure and post-closure care, 
or no later than 120 days after the corrective action remedy has been selected in accordance 
with the requirements of Rule .1636 of this Section. The owner or operator shall place a 
copy of the letter of credit in the operating record. The issuing institution shall be an entity 
which has the authority to issue letters of credit and whose letter of credit operations are 
regulated and examined by a Federal or State agency. 

(ii) A letter from the owner or operator referring to the letter of credit by number, issuing 
institution, and date, and providing the following information: name and address of the 
facility, and the amount of funds assured, shall be included with the letter of credit in the 
operating record. 

(iii) The letter of credit shall be irrevocable and issued for a period of at least one year in an 
amount at least equal to the current cost estimate for closure, post-closure care or corrective 
action, whichever is applicable, except as provided in Paragraph (e)(l)(J) of this Rule. The 
letter of credit shall provide that the expiration date shall be automatically extended for a 
period of at least one year unless the issuing institution has canceled the letter of credit by 
sending notice of cancellation by certified mail to the owner and operator and to the Division 
120 days in advance of cancellation. If the letter of credit is canceled by the issuing 
institution, the owner or operator shall obtain alternate financial assurance. 

(iv) The owner or operator may cancel the letter of credit only if alternate financial assurance is 
substituted as specified in this Rule or if the owner or operator is released from the 
requirements of Paragraph (b)(2), (c)(2) or (d)(2) of this Rule, 
(v) The owner or operator shall establish a standby trust fund. The standby trust fund shall meet 
the requirements of Paragraph (e)(1)(A) of this Rule except the requirements for initial 
payment and subsequent annual payments specified in Paragraph (e)(l)(A)(ii), (iii), (iv) and 
(v) of this Rule. 

(vi) Payments made under the terms of the letter of credit shall be deposited by the issuing 
institution directly into the standby trust fund. Payments from the trust fund shall be 
approved by the trustee and the Division. 

(D) Insurance. 

(i) An owner or operator may demonstrate financial assurance for closure and post-closure care 
by obtaining insurance which conforms to the requirements of this Part. The insurance shall 
be effective before the initial receipt of waste or before the effective date of this Rule, (April 
9, 1994), whichever is later. At a minimum, the insurer shall be licensed to transact the 
business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, 
in North Carolina. The owner or operator shall place a copy of the insurance policy in the 



9:3 NORTH CAROLINA REGISTER May 2, 1994 175 



PROPOSED RULES 



operating record, 
(ii) The closure or post-closure care insurance policy shall guarantee that funds shall be available 
to close the MSWLF unit whenever final closure occurs or to provide post-closure care for 
the MSWLF unit whenever the post-closure care period begins, whichever is applicable. The 
policy shall also guarantee that once closure or post-closure care begins, the insurer shall be 
responsible for the paying out of funds to the owner or operator or other person authorized 
to conduct closure or post-closure care, up to an amount equal to the fece amount of the 
policy. 

(iii) The insurance policy shall be issued for a face amount at least equal to the current cost 
estimate for closure or post-closure care, whichever is applicable, except as provided in 
(e)(l)(J) of this Rule. The term "face amount" means the total amount the insurer is obligated 
to pay under the policy. Actual payments by the insurer shall not change the face amount, 
although the insurer's future liability shall be lowered by the amount of the payments. 

(iv) An owner or operator, or any other person authorized to conduct closure or post-closure care, 
may receive reimbursements for closure or post-closure expenditures, whichever is applicable. 
Requests for reimbursement shall be granted by the insurer only if the remaining value of the 
policy is sufficient to cover the remaining costs of closure or post-closure care, and if 
justification and documentation of the cost is placed in the operating record. The owner or 
operator shall document in the operating record that reimbursement and Division approval has 
been received, 
(v) Each policy shall contain a provision allowing assignment of the policy to a successor owner 
or operator. Such assignment may be conditional upon consent of the insurer, provided that 
such consent is not unreasonably refused. 

(vi) The insurance policy shall provide that the insurer may not cancel, terminate or fail to renew 
the policy except for failure to pay the premium. The automatic renewal of the policy shall, 
at a minimum, provide the insured with the option of renewal at the face amount of the 
expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy 
by sending notice of cancellation by certified mail to the owner and operator and to the 
Division 120 days in advance of cancellation. If the insurer cancels the policy, the owner or 
operator shall obtain alternate financial assurance as specified in this Rule. 

(vii) For insurance policies providing coverage for post-closure care, commencing on the date that 
liability to make payments pursuant to the policy accrues, the insurer shall thereafter annually 
increase the face amount of the policy. Such increase shall be equivalent to the face amount 
of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of 
the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. 
Treasury for 26- week Treasury securities, 
(viii) The owner or operator may cancel the insurance policy only if alternate financial assurance 
is substituted as specified in this Rule or if the owner or operator is no longer required to 
demonstrate financial responsibility in accordance with the requirements of Paragraph (b)(2), 
(c)(2) or (d)(2) of this Rule. 

(E) Corporate Financial Test. 
[Reserved] 

(F) Local Government Financial Test. An owner or operator of a MSWLF which is a unit of local 
government may satisfy the requirements of this Paragraph by demonstrating that it meets the 
requirements of the local government financial test as specified in this Part. Financial terms used 
in this Part are to be interpreted consistent with generally accepted accounting principles. The 
test consists of a financial component, a public notice component, and a record-keeping and 
reporting component. A unit of local government shall satisfy each of the three components 
aimually to pass the test. 

(i) Financial Component. In order to satisfy the financial component of the test, a unit of local 

government shall meet the criteria of either (I) or (II) of this Subpart and in addition shal 

meet the conditions outlined in (III) of this Subpart. 

(I) A ratio of the current cost estimates for closure, post-closure, corrective action, or the sum 

of the combination of such costs to be covered, and any other environmental obligations 

assured by a financial test, to total revenue [as stated on the Local Government 



176 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



Commission's Amiual Financial Information Report (AFIR) Part 2] less than or equal to 

0.43; a ratio of operating cash plus investments (as stated on the APIR Part 7) to total 

operating expenditures (as stated on the AFIR Part 4 Columns a and b and Part 5 for 

municipalities or Part 5 excluding educational capital outlays for counties) greater than or 

equal to 0.05; and a ratio of annual debt service (as stated on the AFIR Part 4 Section I) 

to total operating expenditures less than or equal to 0.20. 

(II) A current bond rating of Baa or above as issued by Moody's, BBB or above as issued by 

Standard & Poor's, BBB or above as issued by Fitch's, or 75 or above as issued by the 

Municipal Council; a ratio of the current cost estimates for closure, post-closure, 

corrective action, or the sum of the combination of such costs to be covered, and any 

other environmental obligations assured by a financial test to total revenue less than or 

equal to 0.43. 

(HI) A unit of local government shall not have operated at a total operating fund deficit equal 

to five percent or more of total annual revenue in either of the past two fiscal years; it 

shall not currently be in default on any outstanding general obligation bonds or any other 

long-term obligations; and it shall not have any outstanding general obligation bonds rated 

lower than Baa as issued by Moody's, BBB as issued by Standard & Poor's, BBB as 

issued by Fitch's or lower than 75 as issued by the Municipal Council. 

(ii) Public Notice Component. In order to satisfy the Public Notice Component of the test, a unit 

of local government shall disclose its closure, post-closure, and corrective action cost 

estimates and relevant information in accordance with generally accepted accounting 

principles. 

(iii) Record-keeping and Reporting Component. To demonstrate that the unit of local government 

meets the requirements of this test, a letter signed by the unit of local government's chief 

financial officer (CFO) and worded as specified in Part (e)(2)(G) of this Rule shall be placed 

in the operating record in accordance with the deadlines of Subpart (iv) of this Part. The 

letter shall: 

(I) List all the current cost estimates covered by a financial test, as described in Subpart (v) 

of this Part; 
(n) Provide evidence and certify that the unit of local government meets the conditions of 

either Subpart (i)(I) or (i)(II) of this Part; and 

(III) Certify that the unit of local government meets the conditions of Subpart (i)(III) of this 

Part. 

(iv) In the case of closure and post-closure care, the Chief Financial Officer's letter shall be 

placed in the operating record before the initial receipt of waste or by April 9, 1994, 

whichever is later. In the case of corrective action, the CFO's letter shall be placed in the 

operating record no later than 120 days after the corrective action remedy has been selected 

in accordance with the requirements of Rule .1636. 

(v) When calculating the "current cost estimates for closure, post-closure, corrective action, or 

the sum of the combination of such costs to be covered, and any other environmental 

obligations assured by a financial test" referred to in Part (F)(i) of this Paragraph, the unit 

of local government shall include cost estimates required for municipal solid waste 

management facilities under 15A NCAC 13B .1600, as well as cost estimates required for all 

other environmental obligations it assures through a financial test, including but not limited 

to those associated with hazardous waste treatment, storage, and disposal facilities under 15A 

NCAC 13A .0009 and .0010, petroleum underground storage tank facilities under 15A 

NCAC 2N .0100 through .0800, Underground Injection Control facilities under 15A NCAC 

2D .0400 and 15A NCAC 2C .0200, and PCB storage facilities under 15A NCAC 20 .0100 

and 15A NCAC 2N .0100. 

(vi) Annual updates of the financial test letter shall be placed in the operating record within 120 

days after the close of each succeeding fiscal year, 
(vii) If the unit of local government no longer meets the requirements of Parts (i), (ii), and (iii) 
of this Paragraph, the unit of local government shall notify the Division of intent to establish 
alternate financial assurance within 120 days after the end of the fiscal year for which the 
year-end financial data show that the unit of local government no longer meets the 



9:3 NORTH CAROLINA REGISTER May 2, 1994 177 



PROPOSED RULES 



requirements. The unit of local government shall provide alternate financial assurance within 
1 50 days after the end of said fiscal year, 
(viii) The unit of local government is no longer required to comply with the requirements of this 
Part if alternate financial assurance is substituted as specified in this Rule or if the unit of 
local government is no longer required to demonstrate financial responsibility in accordance 
with Paragraph (b)(2), (c)(2) or (d)(2) of this Rule. 
(G) Corporate Guarantee. 

[Reserved] 
(H) Local Government Guarantee. 

[Reserved] 
(I) Capital Reserve Fund. 

(i) MSWLF units owned or operated by units of local government or public authority may satisfy 
the requirements of this Paragraph by establishing a capital reserve fund which conforms to 
the requirements of this Part. The unit of local government or public authority shall be an 
entity which has the authority to establish a capital reserve fund under authority of G.S. 159 
and whose financial operations are regulated and examined by a State agency. The capital 
reserve fund shall be established consistent with auditing, budgeting and government 
accounting practices as prescribed in G.S. 159 and by the Local Government Commission. 
A copy of the capital reserve fund ordinance or resolution with a certified copy of the meeting 
minutes and a copy of documentation of initial and subsequent year's deposits shall be placed 
in the MSWLF's operating record, 
(ii) Payments into the capital reserve fund shall be made annually by the unit of local government 
or public authority over the term of the initial permit or over the remaining life of the 
MSWLF unit, in the case of a capital reserve fund for closure or post-closure care, or over 
one-half of the estimated length of the corrective action program in the case of corrective 
action for known releases. This period is referred to as the pay-in period. The pay-in period 
shall not extend beyond December 31, 1997 for an existing MSWLF unit not designed and 
constructed with a base liner system approved by the Division, 
(iii) For a capital reserve fund used to demonstrate financial assurance for closure and post-closure 
care, the first payment into the fund shall be at least equal to the current cost estimate for 
closure or post-closure care, divided by the number of years in the pay-in period as defined 
in Subpart (ii) of this Part. The amount of subsequent payments shall be determined by the 
following formula: 

Next Payment = CE-CV 

Y 

where CE is the current cost estimate for closure or post-closure care (updated for inflation 
or other changes), CV is the current value of the capital reserve fund, and Y is the number 
of years remaining in the pay-in period, 
(iv) For a capital reserve fund used to demonstrate financial assurance for corrective action, the 
first payment into the capital reserve fund shall be at least equal to one-half of the current 
cost estimate for corrective action. TTie amount of subsequent payments shall be determined 
by the following formula: 

Next Payment = CE-CV 

Y 

where CE is the current cost estimate for corrective action (updated for inflation or other 
changes), CV is the current value of the capital reserve fund, and Y is the number of years 
remaining in the pay-in period, 
(v) The initial payment into the capital reserve fund shall be made before the initial receipt of 
waste or before the effective date of this Rule (April 9, 1994), whichever is later, in the case 
of closure and post-closure care, or no later than 120 days after the corrective action remedy 
has been selected in accordance with the requirements of Rule .1636 of this Section. 



178 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



Subsequent payments shall be made no later than 30 days after each anniversary date of the 
first payment, 
(vi) If the unit of local government or public authority establishes a capital reserve fund after 
having used one or more alternate mechanisms specified in this Paragraph, the initial payment 
into the capital reserve fund shall be at least the amount that the fund would contain if the 
capital reserve fund were established initially and annual payments made according to the 
specifications of this Part, 
(vii) The unit of local government or public authority authorized to conduct closure, post-closure 
care or corrective action activities may expend capital reserve funds to cover the remaining 
costs of closure, post-closure care, corrective action activities or for the debt service 
payments on financing arrangements for closure, post-closure care or corrective action 
activities. Monies in the capital reserve fund can only be used for these purposes unless the 
fund is terminated in accordance with Paragraph (e)(l)(I)(viii) of this Rule. The unit of local 
government or public authority shall document justifying expenditures and place a copy in the 
operating record, 
(viii) The capital reserve fund may be terminated by the unit of local government or public 
authority only if it substitutes alternate financial assurance as specified in this Rule or if no 
longer required to demonstrate financial responsibility in accordance with the requirements 
of Paragraph (b)(2), (c)(2) or (d)(2) of this Rule. 
(J) Use of Multiple Financial Mechanisms. An owner or operator may satisfy the requirements of 
this Paragraph by establishing more than one financial mechanism per facility. The mechanisms 
shall be as specified in Parts (A), (B), (C), (D), (E), (F), (G), (H) and (I) of this Paragraph, 
except that it is the combination of mechanisms, rather than the single mechanism, which shall 
provide financial assurance for an amount at least equal to the current cost estimate for closure, 
post-closure care or corrective action, whichever is applicable. The financial test and a guarantee 
provided by a corporate parent, sibling, or grandparent may not be combined if the financial 
statements of the two firms are consolidated. Mechanisms guaranteeing performance, rather than 
payment, may not be combined with other instruments. 
(K) The wording of the instruments shall be identical to the wording specified in Paragraph (e)(2) of 
this Rule. 
(2) Wording of Instruments. 
(A) Trust Agreement. 

(i) A trust agreement for a trust fund, as specified in Paragraph (e)(1)(A) of this Rule, shall be 
worded as follows, except that instructions in brackets are to be replaced with the relevant 
information and the brackets deleted: 

TRUST AGREEMENT 

Trust Agreement, the "Agreement," entered into as of[date] by and between [name of the owner or operator], 
a [name of State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and 

[name of corporate trustee], [insert "incorporated in the State of " or "a national bank"], 

the "Trustee. " 

Whereas, the Division of Solid Waste Management, the "Division," an agency of the State of North 
Carolina, has established certain regulations applicable to the Grantor, requiring that an owner or operator 
of a solid waste management facility shall provide assurance that funds shall be available when needed for 
closure, post-closure care, or corrective action of the facility. 

Whereas, the Grantor has elected to establish a trust to provide all or part of such financial assurance for 
the facilities identified herein. 

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee 
under this agreement, and the Trustee is willing to act as trustee. 

Now, therefore, the Grantor and the Trustee agree as follows: 



9:3 NORTH CAROLINA REGISTER May 2, 1994 179 



PROPOSED RULES 



Section 1. Definitions. As used in this Agreement: 

(a) The term "Grantor" means the owner or operator who enters into this Agreement and any successors 
or assigns of the Grantor. 

(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee. 

Section 2. Identification of Facilities and Cost Elstimates. This Agreement pertains to the facilities and 
cost estimates identified on Schedule A [on Schedule A, for each facility list the Solid Waste Section Permit 
Number, name, address, and the current closure, post-closure, or corrective action cost estimates, or portions 
thereof, for which financial assurance is demonstrated by this Agreement]. 

Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund," 
for the benefit of the Division. The Grantor and the Trustee intend that no third party have access to the Fund 
except as herein provided. The Fund is established initially as consisting of the property, which is acceptable 
to the Trustee, described in Schedule B. 

Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, 
together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant 
to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee 
shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty 
to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by 
the Division. 



Section 4. Payment for Closure, Post-Closure Care, and Corrective Action. The Trustee shall make 
payments from the Fund as the Division of Solid Waste Management (the "Division") shall direct, in writing, 
to provide for the payment of the costs of closure, post-closure care, or corrective action of the facilities 
covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the 
Division from the Fund for closure, post-closure, and corrective action expenditures in such amounts as the 
Division shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the 
Division specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined 
herein. 

Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of 
cash or securities acceptable to the Trustee. 

Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income of the 
Fund and keep the Fund invested as a single fund, without distinction between principal and income, in 
accordance with general investment policies and guidelines which the Grantor may communicate in writing 
to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, 
exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust 
fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the 
circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such 
matters, would use in the conduct of an enterprise of a like character and with like aims; except that: 

(i) Securities or other obligations of the Grantor, or any other owner or operator of the fecilities, or any 

of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 U.S.C. 80a- 

2. (a), shall not be acquired or held, unless they are securities or other obligations of the Federal or 

State government; 

(ii) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent 

insured by an agency of the Federal or State government; and 
(iii) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable 
time and without liability for the payment of interest thereon. 

Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion: 

(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or 



180 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all 
of the provisions thereof, to be commingled with the assets of other trusts participating therein; and 
(b) To purchase shares in any investment company registered under the Investment Company Act of 
1940, 15 U.S.C. 80a-l et seq., including one which may be created, managed, underwritten, or to 
which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee 
may vote such shares in its discretion. 

Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretions conferred 
upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and 
empowered: 

(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or 
private sale. No person dealing with the Trustee shall be bound to see to the application of the 
purchase money or to inquire into the validity or expediency of any such sale or other disposition; 

(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and 
any and all other instruments that may be necessary or appropriate to carry out the powers herein 
granted; 

(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold 
any security in bearer form or in book entry, or to combine certificates representing such securities 
with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or 
arrange for the deposit of such securities in a qualified central depository even though, when so 
deposited, such securities may be merged and held in bulk in the name of the nominee of such 
depository with other securities deposited therein by another person, or to deposit or arrange for the 
deposit of any securities issued by the United States Government, or any agency or instrumentality 
thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times 
show that all such securities are part of the Fund; 

(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued 
by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with 
the Trustee, to the extent insured by an agency of the Federal or State government; and 

(e) To compromise or otherwise adjust all claims in fevor of or against the Fund. 

Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect 
of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other 
expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal 
services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the 
Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund. 

Section 10. Annual Valuation. The Trustee shall annually, at least 30 days prior to the anniversary date 
of establishment of the Fund, furnish to the Grantor and to the Division a statement confirming the value of 
the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the 
anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee 
within 90 days after the statement has been furnished to the Grantor and the Division shall constitute a 
conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against 
the Trustee with respect to matters disclosed in the statement. 

Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be 
counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any 
action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting 
upon the advice of counsel. 

Section 12. Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its 
services as agreed upon in writing from time to time with the Grantor 

Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such 
resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this 



9:3 NORTH CAROLINA REGISTER May 2, 1994 181 



PROPOSED RULES 



successor accepts the appointment. The successor trustee shall have the same powers and duties as those 
conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the 
Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting 
the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, 
the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for 
instructions. The successor trustee shall specify the date on which it assumes administration of the trust in 
writing sent to the Grantor, the Division, and the present Trustee by certified mail 10 days before such change 
becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this 
Section shall be paid as provided in Section 9. 

Section 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the 
Trustee shall be in writing, signed by such persons as are designated in the Exhibit A or such other designees 
as the Grantor may designate by amendment to Exhibit A. The Trustee shall be fully protected in acting 
without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests, and 
instructions by the Division to the Trustee shall be in writing, signed by the Division, or his designee, and 
the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and 
instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that 
no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor 
or Division hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, 
requests, and instructions from the Grantor or Division, except as provided for herein. 

Section 15. Notice of Nonpayment. The Trustee shall notify the Grantor and the Division by certified mail 
within 10 days following expiration of the 30-day period after the anniversary of the establishment of the 
Trust, if no payment is received from the Grantor during that period. After the pay-in period is completed, 
the Trustee shall not be required to send a notice of nonpayment. 

Section 16. Amendment of Agreement. This Agreement may be amended by an instrument in writing 
executed by the Grantor, the Trustee, and the Division, or by the Trustee and the Division if the Grantor 
ceases to exist. 

Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement 
as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated at the written 
agreement of the Grantor, the Trustee, and the Division, or by the Trustee and the Division, if the Grantor 
ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration 
expenses, shall be delivered to the Grantor. 

Section 18. Immunity and Indemnification. The Trustee shall not incur personal liability of any nature 
in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying 
out any directions by the Grantor or the Division issued in accordance with this Agreement. The Trustee shall 
be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any 
personal liability to which the Trustee may be subjected by reason of any act or conduct in its official 
capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide 
such defense. 

Section 19. Choice of Law. This Agreement shall be administered, construed, and enforced according to 
the laws of the State of North Carolina. 

Section 20. Interpretation. As used in this Agreement, words in the singular include the plural and words 
in the plural include the singular. The descriptive headings for each Section of this Agreement shall not affect 
the interpretation or the legal efficacy of this Agreement. 

In Witness Whereof the parties have caused this Agreement to be executed by their respective officers duly 
authorized and their corporate seals to be hereunto affixed and attested as of the date first above written: The 
parties below certify that the wording of this Agreement is identical to the wording specified in Paragraph 
(e)(2)(A)(i) of this Rule as were constituted on the date first above written. 



182 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



Attest: 
[Title] 
[Seal] 



[Signature of Grantor] 
[Title] 



[Signature of Trustee] 



Attest: 
[Title] 
[Seal] 

(ii) The following is an example of the certification of acknowledgment which shall accompany 
the trust agreement for a trust fund. 

State of 
County of 

On this [date], before me personally came [owner or operator] to me known, who, being by 
me duly sworn, did depose and say that she/he resides at [address], that she/he is [title] of 
[corporation], the corporation described in and which executed the above instrument; that 
she/he knows the seal of said corporation; that the seal affixed to such instrument is such 
corporate seal; that it was so affixed by order of the Board of Directors of said corporation, 
and that she/he signed her/his name thereto by like order. 

[Signature of Notary Public] 

(B) A surety bond guaranteeing payment into a trust fund, as specified in Paragraph (e)(1)(B) of this 
Rule, shall be worded as follows, except that instructions in brackets are to be replaced with the 
relevant information and the brackets deleted: 

FINANCIAL GUARANTEE BOND 

Date bond executed: 

Effective date: 

Principal: [legal name and business address of owner or operator] 

Type of organization: [insert "individual", "joint venture", "partnership", or "corporation"] 

State of incorporation: 

Surety (ies): [name(s) and business address(es)] 

Solid Waste Section Permit Number, name, address, and closurer or post-closu re, or corrective action 

amount(s) for each fecility guaranteed by this bond [indicate closure^ and post-closur e, and corrective 

action amounts separately]: 

Total penal sum of bond: $ 

Surety's bond number: 

Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the 
North Carolina Division of Solid Waste Management (hereinafter called the Division), in the above penal sum 
for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns 
jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the 
Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action 
or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally 
with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if 
no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum. 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



183 



PROPOSED RULES 



Whereas, said Principal is required, under the Solid Waste Management Rule .0201 as amended, to have 
a permit in order to own or operate each solid waste management facility identified above, and 

Whereas, said Principal is required to provide financial assurance for closure; or post-closure care , or 
corrective action , as a condition of the permit, and 

Whereas, said Principal shall establish a standby trust fund as is required when a surety bond is used to 
provide such financial assurance; 

Now, Therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the 
beginning of final closurer and post-closur e, and corrective action of each facility identified above, fund the 
standby trust fund in the amount(s) identified above for the facility. 

Or, if the Principal shall fund the standby trust fund in such amount(s) within 15 days after a final order to 
begin closurer and post-closu re, and corrective action is issued by the Division or a U.S. district court or other 
court of competent jurisdiction. 

Or, if the Principal shall provide alternate financial assurance and obtain the Division's written approval of 
such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the 
Division from the Surety(ies), then this obligation shall be null and void; otherwise it is to remain in full force 

and effect. 

The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the 
conditions described above. Upon notification by the Division that the Principal has failed to perform as 
guaranteed by this bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into 
the standby trust fund as directed by the Division. 

The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, 
unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but 
in no event shall the obligation of the Surety (ies) hereunder exceed the amount of said penal sum. 

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and 
to the Division, provided, however, that cancellation shall not occur during the 120 days beginning on the date 
of receipt of the notice of cancellation by both the Principal and the Division, as evidenced by the return 
receipts. 

The Principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that 
no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of 
the bond by the Division. 

[The following paragraph is an optional rider that may be included but is not required.] 

Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new 
closurer or post-closur e, or corrective action amount, provided that the penal sum does not increase by more 
than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission 
of the Division. 

In Witness Whereof, the Principal and Surety(ies) have executed this Financial Guarantee Bond and have 
affixed their seals on the date set forth above. 

The persons whose signatures appear below hereby certify that they are authorized to execute this surety 
bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the 
wording specified in Paragraph (e)(2)(B) of this Rule as were constituted on the date this bond was executed. 

Principal 



184 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



[Signature(s)] 
[Name(s)] 
[Title(s)] 
[Corporate seal] 



Corporate Surety(ies) 

[Name and address] 

State of incorporation: 

Liability limit: $ 

[Signature(s)] 

[Name(s) and title(s)] 

[Corporate seal] 

[For every co-surety, provide signature(s), corporate seal, and other information in the same manner 

as for Surety above.] 

Bond premium: $ 

(C) A surety bond guaranteeing performance of closure, post-closure care, or corrective action, as 
specified in Paragraph (e)(1)(B) of this Rule, shall be worded as follows, except that instructions 
in brackets are to be replaced with the relevant information and the brackets deleted: 

PERFORMANCE BOND 

Date bond executed: 

Effective date: 

Principal: [legal name and business address of owner or operator] 

Type of organization: [insert "individual", "joint venture", "partnership", or "corporation"] 

State of incorporation: 

Surety(ies): [name(s) and business address(es)] 

Solid Waste Section Permit Number, name, address, and closure, post-closure, or corrective action 

amount(s) for each facility guaranteed by this bond [indicate closure, post-closure, and corrective 

action amounts separately]: 

Total penal sum of bond: $ 

Surety's bond number: 

Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the 
North Carolina Division of Solid Waste Management (hereinafter called the Division), in the above penal sum 
for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns 
jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the 
Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action 
or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally 
with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if 
no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum. 

Whereas, said Principal is required, under the Solid Waste Management Rule .0201 as amended, to have 
a permit in order to own or operate each solid waste management facility identified above, and 

Whereas, said Principal is required to provide financial assurance for closure, post-closure care, or 
corrective action as a condition of the permit, and 

Whereas, said Principal shall establish a standby trust fund as is required when a surety bond is used to 
provide such financial assurance; 



9:3 NORTH CAROLINA REGISTER May 2, 1994 185 



PROPOSED RULES 



Now, Therefore, the conditions of this obligation are such that if the Principal shall faithfully perform 
closure, whenever required to do so, of each facility for which this bond guarantees closure, in accordance 
with the closure plan and other requirements of the permit, as such plan and permit may be amended, pursuant 
to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be 
amended. 

And, if the Principal shall faithfully perform post-closure care of each facility for which this bond guarantees 
post-closure care, in accordance with the post-closure plan and other requirements of the permit, as such plan 
and permit may be amended, pursuant to all applicable laws, statutes, rules, and regulations as such laws, 
statutes, rules, and regulations may be amended, 

And, if the Principal shall faithfully perform corrective action of each facility for which this bond guarantees 
corrective action, in accordance with the corrective action program and other requirements of the permit, as 
such program and permit may be amended, pursuant to all applicable laws, statutes, rules, and regulations as 
such laws, statutes, rules, and regulations may be amended. 

Or, if the Principal shall provide alternate financial assurance and obtain the Division's written approval of 
such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the 
Division from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force 
and effect. 

The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the 
conditions described above. 

Upon notification by the Division that the Principal has been found in violation of the closure requirements 
for a facility for which this bond guarantees performance of closure, the Surety(ies) shall either perform 
closure in accordance with the closure plan and other permit requirements or place the closure amount 
guaranteed for the facility into the standby trust fund as directed by the Division. 

Upon notification by the Division that the Principal has been found in violation of the post-closure 
requirements for a facility for which this bond guarantees performance of post-closure care, the Surety(ies) 
shall either perform post-closure care in accordance with the post-closure plan and other permit requirements 
or place the post-closure amount guaranteed for the facility into the standby trust fund as directed by the 
Division. 

Upon notification by the Division that the Principal has been found in violation of the corrective action 
requirements for a facility for which this bond guarantees performance of corrective action, the Surety(ies) 
shall either perform corrective action in accordance with the corrective action program and other permit 
requirements or place the corrective action amount guaranteed for the fecility into the standby trust fund as 
directed by the Division. 

Upon notification by the Division that the Principal has failed to provide alternate financial assurance and 
obtain written approval of such assurance from the Division during the 90 days following receipt by both the 
Principal and the Division of a notice of cancellation of the bond, the Surety(ies) shall place funds in the 
amount guaranteed for the fecility(ies) into the standby trust fund as directed by the Division. 

The Surety(ies) hereby waive(s) notification of amendments to closure and post-closure plans, and corrective 
action programs, permits, applicable laws, statutes, rules, and regulations and agrees that no such amendment 
shall in any way alleviate its (their) obligation on this bond. 

The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, 
unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but 
in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum. 

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the owner or 



186 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



operator and to the Division, provided, however, that cancellation shall not occur during the 120 days 
beginning on the date of receipt of the notice of cancellation by both the Principal and the Division, as 
evidenced by the return receipts. 

The Principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that 
no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of 
the bond by the Division. 

[The following paragraph is an optional rider that may be included but is not required.] 

Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new 
closure, post-closure, or corrective action amount, provided that the penal sum does not increase by more than 
20 percent in any one year, and no decrease in the penal sum takes place without the written permission of 
the Division. 

In Witness Whereof, The Principal and Surety(ies) have executed this Performance Bond and have affixed 
their seals on the date set forth above. 

The persons whose signatures appear below hereby certify that they are authorized to execute this surety 
bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the 
wording specified in Paragraph (e)(2)(C) of this Rule as was constituted on the date this bond was executed. 



Principal 



[Signature(s)] 
[Name(s)] 
[Title(s)] 
[Corporate seal] 



Corporate Surety(ies) 

[Names and address] 

State of incorporation: 

Liability limit: $ 

[Signature(s)] 

[Names(s) and title(s)] 

[Corporate seal] 

[For every co-surety, provide signature(s), corporate seal, and other information in the same manner 

as for Surety above.] 

Bond premium: $ 

(D) A letter of credit, as specified in Paragraph (e)(1)(C) of this Rule, shall be worded as follows, 
except that instructions in brackets are to be replaced with the relevant information and the 
brackets deleted: 

IRREVOCABLE STANDBY LETTER OF CREDIT 

North Carolina Department of Environment, Health, and Natural Resources 

Solid Waste Management Division 

Solid Waste Section 

P.O. Box 27687 

Raleigh, North Carolina 27611-7687 



9:3 NORTH CAROLINA REGISTER May 2, 1994 187 



PROPOSED RULES 



Dear Sir or Madam: 

We hereby establish our Irrevocable Standby Letter of Credit No. in your fevor, at the request 

and for the account of [owner's or operator's name and address] up to the aggregate amount of [in 
words] U.S. dollars $ , available upon presentation of 

(1) your sight draft, bearing reference to this letter of credit No. , and 

(2) your signed statement reading as follows: "I certify that the amount of the draft is payable 
pursuant to requirements of 15A NCAC 13B .1628 as amended." 

This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such 
expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each 
successive expiration date, unless, at least 120 days before the current expiration date, we notify both 
you and [owner's or operator's name] by certified mail that we have decided not to extend this letter 
of credit beyond the current expiration date. In the event you are so notified, any unused portion of 
the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt 
by both you and [owner's or operator's name], as shown on the signed return receipts. 

Whenever this letter of credit is drawn on, under and in compliance with the terms of this credit, we 
shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft 
directly into the standby trust fund of [owner's or operator's name] in accordance with your 
instructions. 

We certify that the wording of this letter of credit is identical to the wording specified in Paragraph 
(e)(2)(D) of this Rule as were constituted on the date shown immediately below. 

[Signature(s) and title(s) of official(s) of issuing institution], [Date] 

This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for 
Documentary Credits, published by the International Chamber of Commerce," or "the Uniform 
Commercial Code"]. 

(E) A certificate of insurance, as specified in Paragraph (e)(1)(D) of this Rule, shall be worded as 
follows, except that instructions in brackets are to be replaced with the relevant information and 
the brackets deleted: 

CERTIFICATE OF INSURANCE FOR CLOSURE OR POST-CLOSURE CARE 

Name and Address of Insurer 
(herein called the "Insurer"): 

Name and Address of Insured 
(herein called the "Insured"): 

Facilities Covered: [List for each facility: The Solid Waste Section Permit Number, name, address, 
and the amount of insurance for closure or the amount for post-closure care (these amounts for all 
facilities covered shall total the face amount shown below).] 

Face Amount: 
Policy Number: 
Effective Date: 

The Insurer hereby certifies that it has issued to the Insured the policy of insurance identified 
above to provide financial assurance for [insert "closure" or "closure and post-closure care" or "post- 



188 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



closure care"] for the facilities identified above. 

The Insurer further warrants that such policy conforms in all respects with the requirements 
of Paragraph (e)(1) of this Rule, as applicable and as such regulations were constituted on the date 
shown immediately below. It is agreed that any provision of the policy inconsistent with such 
regulations is hereby amended to eliminate such inconsistency. 

Whenever requested by the North Carolina Division of Solid Waste Management (Division), 
the Insurer agrees to furnish to the Division a duplicate original of the policy listed above, including 
edl endorsements thereon. 

I hereby certify that the wording of this certificate is identical to the wording specified in 
Paragraph (e)(2)(E) of this Rule as were constituted on the date shown immediately below. 

[Authorized signature for Insurer] 
[Name of person signing] 
[Title of person signing] 
Signature of witness or notary: 

[Date] 

(F) A capital reserve fund, as specified in Paragraph (e)(l)(I) of this Rule, shall be worded as 
follows, except that instructions in brackets are to be replaced with the relevant information and 
the brackets deleted: 

CAPITAL RESERVE FUND RESOLUTION 

ESTABLISHMENT AND MAINTENANCE 

OF THE 

MUNICIPAL SOLID WASTE LANDFILL 

CAPITAL RESERVE FUND 

WHEREAS, there is a need in [location of landfill site, (e.g. City of Raleigh, County of Wake)] to provide 
funds for [closure, post-closure, or corrective action] for the [permit number], [name] landfill; and 

WHEREAS, the [location] shall bear the cost of [closure, post-closure, or corrective action] for the landfill 
at an estimated cost of [cost estimate]. 

NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BOARD THAT: 

Section 1 . The Governing Board hereby creates a Capital Reserve Fund for the purpose of [closure, 
post-closure, or corrective action] for the [permit number] landfill. 

Section 2. This Fund shall remain operational for a period not to exceed during the life of the landfill 
and the post-closure care piae period beginning [date] and ending [date] or until a cumulative sum 
not to exceed [cost estimate in words] ([cost catimatc in numbers]) has been received as estimated at 
the time of annual update of this Resolution . 

Section 3 . The Board shall appropriate or transfer an amount of no less than [annual payment] each 
year to this Fund. 

Section 4. This Resolution shall become effective and binding upon its adoption. 
[Signature of County Commissioner] 



9:3 NORTH CAROLINA REGISTER May 2, 1994 189 



PROPOSED RULES 



[Signature of Chief Financial Officer] 



[Date] 

(G) A local government financial test, as specified in Part (e)(1)(F) of this Rule, shall be worded as 
follows, except that instructions in brackets are to be replaced with the relevant information and 
the brackets deleted: 

LETTER FROM CHIEF FINANCIAL OFFICER 

[Address to the Department of Environment, Health, and Natural Resources, Solid Waste Section, Post 
Office Box 27687, Raleigh, North Carolina 27611-7687.] 

I am the chief financial officer of [name and address of unit of local govenmient] . This letter is in support 
of this unit of local government's use of the financial test to demonstrate financial assurance, as specified in 
15A NCAC 13B .1628 (e)(1)(F). 

[Fill out the following paragraph regarding the municipal solid waste facilities and associated cost estimates. 
For each facility, include its permit number, name, address and current closure, post-closure, or corrective 
action cost estimates. Identify each cost estimate as to whether it is for closure, post-closure care, or 
corrective action.] 

This unit of local government is the owner or operator of the following facilities for which financial assurance 
for closure, post-closure, or corrective action is demonstrated through the financial test specified in 15A 
NCAC 13B .1628 (e)(1)(F). The current closure, post-closure, or corrective action cost estimates covered 
by the test are shown for each facility: . 

The fiscal year of this unit of local government ends on [month, day, year]. TTie figures for the following 
items marked with an asterisk are derived from this unit of local government's Annual Financial Information 
Report (AFIR) for the latest completed fiscal year, ended [date]. 

[Fill in the Ratio Indicators of Financial Strength section if the criteria of 15A NCAC 13B .1628 
(e)(l)(I^(i)(I) are used. Fill in Bond Rating Indicator of Financial Strength section if the criteria of 15A 
NCAC 13B .1628 (e)(l)(F)(i)(II) are used.] 

RATIO INDICATORS OF FINANCIAL STRENGTH 

1. Sum of current closure, post-closure and corrective action cost 

estimates [total of all cost estimates shown in the paragraphs above] $ 

*2. Sum of cash and investments (AFIR Part 7) $ 

*3. Total expenditures (AFIR Part 4 Columns a & b and Part 5 for 
municipalities or Part 5 excluding educational capital outlays 
for counties) $ 

*4. Annual debt service (AFIR Part 4 Section I) $ 

5. Assured environmental costs to demonstrate financial responsibility 

in the following amounts under Division rules: 

MSWLF under 15A NCAC 13B .1600 $ 



190 9:3 NORTH CAROLINA REGISTER May 2, 1994 



PROPOSED RULES 



Hazardous waste treatment, storage and disposal 

facilities under 15A NCAC 13A .0009 and .0010 $ 

Petroleum underground storage tanks under 

15A NCAC 2N .0100 - .0800 $ 

Underground Injection Control System fecilities under 

15A NCAC 2D .0400 and 15A NCAC 2C .0200 $ 

PCB commercial storage facilities under 

15A NCAC 20 .0100 and 15A NCAC 2N .0100 $ 

Total assured environmental costs $ 

*6. Total Annual Revenue (AFIR Part 2) $ 

Circle either "yes" or "no" to the following questions. 

7. Is line 5 divided by line 6 less than or equal to 0.43? yes/no 

8. Is line 2 divided by line 3 greater than or equal to 0.05? yes/no 

9. Is line 4 divided by line 3 less than or equal to 0.20? yes/no 

BOND RATING INDICATOR OF FINANCIAL STRENGTH 

1 . Sum of current closure, post-closure and corrective action 
cost estimates [total of all cost estimates shown in the 

paragraphs above] $ 

2. Current bond rating of most recent issuance and name of rating service 

3. Date of issuance bond 

4. Date of maturity of bond 

5. Assured environmental costs to demonstrate financial 
responsibility in the following amounts under Division rules: 

MSWLF under 15A NCAC 13B .1600 $ 

Hazardous waste treatment, storage and disposal facilities 

under 15A NCAC 13A .0009 and .0010 $ 

Petroleum underground storage tanks under 

15A NCAC 2N .0100 - .0800 $ 

Underground Injection Control System facilities under 

15A NCAC 2D .0400 and 15A NCAC 2C .0200 $ 

PCB commercial storage facilities under 

15A NCAC 20 .0100 and 15A NCAC 2N .0100 $ 

Total assured environmental costs $ 



9:3 NORTH CAROLINA REGISTER May 2, 1994 191 



PROPOSED RULES 



*6. 



Total Annual Revenue (AFIR Part 2) 



Circle either "yes" or "no" to the following question. 

7. Is line 5 divided by line 6 less than or equal to 0.43? 



yes/ no 



I hereby certify that the wording of this letter is identical to the wording specified in 15A NCAC 13B 
.1628(e)(2)(G) as such rules were constituted on the date shown immediately below. I further certify the 
following: (1) that the unit of local government has not operated at a total operating fund deficit equal to five 
percent or more of total annual revenue in either of the past two fiscal years, (2) that the unit of local 
government is not in defeult on any outstanding general obligations bonds or long-term obligations, and (3) 
does not have any outstanding general obligation bonds rated lower than Baa as issued by Moody's, EBB as 
issued by Standard & Poor's, BBB as issued by Fitch's, or 75 as issued by the Municipal Council. 



[Signature] 



[Name] 

[Title] 

[Date] 

Statutory Authority G.S. 130A-294. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

CHAPTER 32 - BOARD OF 
MEDICAL EXAMEVERS 

j[\otice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Medical Examiners of 
the State of North Carolina intends to amend rule 
cited as 21 NCAC 323 .0305. 

1 he proposed effective date of this action is 
August 1, 1994. 

1 he public hearings will be conducted at 8:30 
a.m. on May 19, 1994 at the Medical Board 
Office, 1203 Front Street, Raleigh, NC 27609. 

IVeason for Proposed Action: lb consider accep- 
tance of Board certification/recertification by 
osteopathic specialty boards in family medicine, 
internal medicine and pediatrics as equivalent to 
Board certification by allopathic specialty boards. 

l^omment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. Written statements not presented at 



the hearing should be directed before June 1 , 1994 
to the following address: Administrative Proce- 
dures, Medical Board, PO Box 20007, Raleigh, 
NC 27619. 

SUBCHAPTER 32B - LICENSE 
TO PRACTICE MEDICINE 

SECTION .0300 - LICENSE 
BY ENDORSEMEP«rr 

.0305 EXAMINATION BASIS 
FOR ENDORSEMENT 

(a) To be eligible for license by endorsement of 
credentials, graduates of medical schools approved 
by the LCME or AOA must supply certification of 
passing scores on one of the following written 
examinations: 

(1) National Board of Medical Examiners; 

(2) FLEX - under Rule .0314 of this Sec- 
tion; 

(3) Written examination administered by an 
allopathic or composite state medical 
board which issued the original license 
on the basis of written examination 
other than FLEX; 

(4) National Board of Osteopathic Examin- 
ers, all parts taken after January 1, 
1990; or 

(5) USMLE - Step 1, Step 2, Step 3 of 
USMLE or a combination of examina- 



192 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



PROPOSED RULES 



tions as set out in Rule .0215(c) of this 
Subchapter. 

(b) Graduates of medical schools not approved 
by LCME or AOA^ and graduates of AOA ap- 
proved schools not qualifying under Rule 
.0305(a)(4) must supply certification of passing 
scores on one of the following written examina- 
tions: 

(1) FLEX - under Rule .0314 of this Sec- 
tion; 

(2) Written examination other than FLEX 
from the state board which issued the 
applicant's original license by written 
examination together with American 
Specialty Board certification^ or with 
American Osteopathic Boards of Family 
Physicians. Internal Medicine, and 
Pediatrics certification and recertifica- 
tion; or 

(3) USMLE - Step 1, Step 2, Step 3 of 
USMLE or a combination of examina- 
tions as set out in Rule .0215(c) of this 
Subchapter. 

(c) A physician who has a valid and utu^estricted 
Ucense to practice medicine in another state, based 
on a written examination testing general medical 
knowledge, and who within the past five years has 
become, and is at the time of application, certified 
or recertified by an American Specialty Board, is 
eligible for license by endorsement. 

(d) Applicants for license by endorsement of 
credentials with FLEX scores that do not meet the 
requirements of Rule .0314 of this Section must 
meet the requirements of Paragraph (c) in this 
Rule. 

Statutory Authority G.S. 90-10; 90-13. 

Ijotice is hereby given in accordance with G.S. 
150B-21.2 that the Board of Medical Examiners of 
the State of North Carolina intends to amend rule 
cited as 21 NCAC 32M .0006. 

Ihe proposed effective date of this action is 
August I, 1994. 

Ihe public hearings will be conducted at 6:30 
p.m. on May 18, 1994 at the Medical Board 
Office, 1203 Front Street, Raleigh, NC 27609. 



Jxeason for Proposed Action: lb make prescrib- 
ing privileges the same for all physician extenders 
in the state to reduce confusion and error. . 

i^omment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at a hearing to be held as indi- 
cated above. V&itten statements not presented at 
the hearing should be directed before June 1, 1994 
to the following address: Administrative Proce- 
dures, Medical Board. PO Box 20007, Raleigh, 
NC 27619. 

SUBCHAPTER 32M - APPROVAL 
OF NURSE PRACTITIONERS 

.0006 PRESCRIBING PRIVILEGES 

(a) The NP Applicant and supervising physicians 
shall acknowledge in the application that they are 
familiar with laws and rules regarding prescribing; 
and shall agree to comply with these laws and 
rules by incorporating the laws and rules, into 
their written standing protocols for each approved 
practice site. 

(b) The prescribing stipulations contained in 
these Rules apply to writing prescriptions and 
ordering the administration of medications. 

(c) Prescribing stipulations are as follows: 

(1) Drugs and devices that may be pre- 
scribed by the NP in the approved 
practice site must be included in the 
written standing protocols as outlined in 
Rule .0009(2) of this Section. 

(2) Controlled Substances (Schedules 2, 
2N, 3, 3N, 4, 5) defined by the State 
and Federal Controlled Substances Acts 
may be prescribed or ordered as estab- 
lished in written standing protocols, 
provided all of the following restric- 
tions are met: 

(A) dosage units for schedules Z, 2N. 3 
and 3N are limited to a one week's 
supply; 

(B) the prescription or order for schedules 
2i 2N. 3 and 3N may not be refilled 
without a specific written or verbal 
order from the supervising physician; 
and 

(C) the NP has an assigned DEA number 
which is entered on each prescription 
for a controlled substance. 

(3) The NP may prescribe a drug not in- 
cluded in the site-specific written stand- 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



193 



PROPOSED RULES 



ing protocols oaly as follows: 

(A) upon a specific written or verbal 
order obtained from the supervising 
physician before the prescription or 
order is issued by the NP; and 

(B) the verbal or written order as de- 
scribed in Part (c)(3)(A) of this Rule 
must be signed by the NP with a 
notation that it is issued on the specif- 
ic order of the supervising physician. 
(For example: Mary Smith, NP, on 
order of John Doe, M.D.) 

(4) Refills may be issued for a period not 
to exceed one year except for schedules 
2i 2N, 3 and 3N controlled substances 
which are excluded from refills. 

(5) Each prescription must be noted on the 
patient's chart and include the following 
information: 

(A) medication dose; 

(B) amount prescribed; 

(C) directions for use; 

(D) number of refills; and 

(E) signature of NP. 

(6) The prescribing number assigned by the 
Board of Medical Examiners to the NP 
must appear on all prescriptions issued 
by the NP 

(7) Prescription Format: 

(A) All prescriptions issued by the NP 
shall contain the supervising physi- 
cian(s) name, the name of the patient, 
and the NP's name, telephone num- 
ber, and prescribing number. 

(B) The NP's assigned DEA number shall 
be written on the prescription form 
when a controlled substance is pre- 
scribed as defined in Subparagraph 
(c)(2) of this Rule. 

(d) The NP must obtain approval to dispense 
these drugs and devices included in the written 
standing orders for each approved practice site 
from the Board of Pharmacy, and must carry out 
the function of dispensing in accordance with 21 
NCAC 46 .1700, which is hereby incorporated by 
reference including subsequent amendments of the 
referenced materials. 

Statutory Authority G.S. 90-6; 90-18(14); 90-18.2; 
90-171.22(14); 58 Fed. Reg. 31.171 (1993) (to be 
codified at 21 C.F.R. 1301). 

CHAPTER 42 - BOARD OF 



EXAMI>fERS IN OPTOMETRY 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Examiners in Optometry intends to amend rules 
cited as 21 NCAC 42A .0001; 42C .0002. .0004 - 
.0005 and 42J .0001. 

1 he proposed effective date of this action is 
October 1. 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on May 25. 1994 at the 109 N. Graham 
Street. Vhllace. NC 28466. 

MXeason for Proposed Action: To change the 
address of the Board, to conform with new statutes 
authorizing the creation of professional limited 
liability companies, and to increase the fee for 
optometry license renewal. 

i^omment Procedures: Persons interested may 
present written or oral statements relevant to the 
actions proposed at the hearing to be held as 
indicated above. Written statements not presented 
at the hearing should be directed before June 1 . 
1994 to the following address: NC Board of 
Examiners in Optometry. 109 N. Graham Street, 
milace. NC 28466. 

SUBCHAPTER 42A - ORGANIZATION 

.0001 LOCATION 

The location of the office of the Board is 321 E. 



Main Str e et, P.O. Draw e r 609, Wallac e , North 



Carolina, 2 84 66 0609 109 >L Graham Street, 
Wallace, North Carolina, 28466-2713 . The 
Board's phone number is i9i9^ (910) 285-3160; its 
WATS number is (800) 426-4457 (in-state only); 
and its fax number is {W9) (910) 285-4546. 

Statutory Authority G.S 90-117.5. 

SUBCHAPTER 42C - PROFESSIONAL 

CORPORATIONS AND LIMITED 

LIABILITY COMPANIES 

.0002 APPLICATION 

An optometrist who has a certificate of registra- 
tion issued by the Board may make application to 
the Board for a certificate of registration for a 
"professional corporation" or "professional limited 



194 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



PROPOSED RULES 



liability company" . When the Board makes the 
findings in G.S. 55B-10, it shall issue a certificate 
of registration for a professional corporation or 
professional limited liability company upon pay- 
ment of the registration fee. The certificate shall 
remain efl'ective until January 1 following the date 
of registration. 



Statutory Authority 
90-117.5. 



.0004 



G.S. 55B-10; 57C-2-01; 



NAMING CORPORATION 

OR LIMFTED LIABILITY COMPANY 

(a) A corporate or limited liability company 
name must include either: 

£1} the name of a shareholder or member 
of the corporation or limited liability 
company and the shareholder's or 
member's degree^ or 

(2) the word or words "optometry", "opto- 
metric", or "optometrists", followed^ in 
the case of corporation, by the words 
"professional association" or the abbre- 
viation "P.A."^ OTi in the case of a 
limited liability company, by the words 
"professional" and "limited liability 
company. " or some abbreviation thereof 
that is permissible under G.S. 57C-2- 
QKc^ and 57C-2-30 or 57C-7-06 . 

(b) The name of the shareholder or member , the 
shareholder's or member's degree, and the words 
"optometrists", "optometry", or "optometric" must 
appear on any corporate or limited liability compa- 
ny sign or advertisement. 

Statutory Authority G.S. 55B-5; 57C-2-01; 57C-2- 
30; 57C-7-06; 90-117.5. 

.0005 ANNUAL RENEWAL 

A certificate of registration for a professional 
corporation or professional limited liability compa- 
ny must be renewed on or before December 31. 
The required renewal fee must accompany the 
application. 

Statutory Authority G.S. 55B-11; 57C-2-01; 90- 
117.5. 

SUBCHAPTER 42J - FEE SCHEDULE 

.0001 FEES 

The Board hereby establishes the following fees: 

(1) Each application for general optometry 
examinations $400.00 

(2) Each general optometry license 



renewal $215.00 $245.00 

(3) Each certificate of license to a resident 
optometrist desiring to change to 
another state or territory $200.00 

(4) Each license issued to a practitioner of 
another state or territory to practice 

in this state $250.00 

(5) Each license to resume practice issued to 
an optometrist who has retired from the 
practice of optometry or who has moved 
from and returned to this state $250.00 

(6) Each application for registration as an 
optometric assistant or renewal 
thereof $ 50.00 

(7) Each application for registration as an 
optometric technician or renewal there- 
of $ 50.00 

(8) Each duplicate license $ 50.00 

(9) Each renewal license for each branch 
office $ 45.00 

(10) Each certificate of registration for a 
professional corporation or limited 
liability company $ 50.00 

(11) Each renewal certificate of registration 
for a professional corporation or 
limited liability company $ 25.00 

Statutory Authority G.S. 55B-10; 55B-11; 57C-2- 
01; 90-117.5; 90-123 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



195 



LIST OF RULES CODIFIED 



1 he List of Rules 


Codified 


is a listing of rules that were filed with OAH in the month indicated. 


J\ey: 








Citation 




= 


Title, Chapter, Subchapter and Rule(s) 


AD 




= 


Adopt 


AM 




= 


Amend 


RP 




= 


Repeal 


With Chgs 




= 


Final text differs from proposed text 


Con 




= 


Typographical errors or changes that requires no rulemaking 


Eff. Date 




= 


Date rule becomes effective 


Temp. Exp 


res 


^ 


Rule was filed as a temporary rule and expires on this date or 180 days 



196 



NORTH CAROLCVA ADMINISTRATIVE CODE 
MARCH 94 



ITLE 


DEPARTMENT 


2 


Agriculture 


10 


Human Resources 


11 


Insurance 


15A 


Environment, Health and 




Natural Resources 


19A 


Transportation 


20 


State Treasurer 



TITLE DEPARTMENT 

21 Occupational Licensing Boards 

1 - Acupuncture 

8 - Certified Public Accountant Examiners 

16 - Dental Examiners 

32 - Medical Examiners 

46 - Pharmacy 

54 - Practicing Psychologists 

57 - Real Estate Appraisal 

58 - Real Estate 
25 State Personnel 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2 NCAC 48C .0008 




/ 








04/01/94 


180 DAYS 


10 NCAC 3R .3001 




/ 








04/01/94 




.3020 




/ 








04/01/94 




.3030 




/ 




/ 




04/01/94 




.3032 




/ 




/ 




04/01/94 




.3040 




/ 




/ 




04/01/94 




.3050 




/ 




/ 




04/01/94 




14K .0103 




/ 




/ 




04/01/94 




.0201 




/ 




/ 




04/01/94 




.0402 - .0403 




/ 




/ 




04/01/94 







9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 


NCAC 14L 


.0501 - 


.0506 






/ 






04/01/94 




.0508 






/ 






04/01/94 






14M 


.0201 - 


.0207 






/ 






04/01/94 




.0209 






/ 






04/01/94 








.0301 - 


.0304 






/ 






04/01/94 








.0401 - 


.0410 






/ 






04/01/94 






14N 


.0601 - 


.0607 






/ 






04/01/94 






140 


.0101 - 


.0107 






/ 






04/01/94 








.0201 - 


.0206 






/ 






04/01/94 








.0208 - 


.0212 






/ 






04/01/94 








.0701 - 


.0703 


/ 










04/01/94 




.0704 


/ 






/ 




04/01/94 








.0705 - 


.0710 


/ 










04/01/94 






14Q 


.0305 




/ 






/ 




04/01/94 






18L 


.1512 






/ 




/ 




04/01/94 






18M 


.0802 






/ 




/ 




04/01/94 




.0818 




/ 








04/01/94 






18N 


.0601 - 


.0602 


/ 






/ 




04/01/94 




.0603 


/ 










04/01/94 




.0604 


/ 






/ 




04/01/94 




.0605 


/ 










04/01/94 




.0701 


/ 






/ 




04/01/94 








.0702 - 


.0703 


/ 










04/01/94 




.0704 


/ 






/ 




04/01/94 








.0705 - 


.0707 


/ 










04/01/94 




.0708 


/ 






/ 




04/01/94 




.0709 


/ 










04/01/94 






18Q 


.0709 - 


.0712 






/ 






04/01/94 








.0714 - 


.0715 






/ 






04/01/94 








.0801 - 


.0805 






/ 






04/01/94 








.0807 - 


.0811 






/ 






04/01/94 




.0813 






/ 






04/01/94 






22W 


.0101 




/ 






/ 




04/01/94 







NORTH CAROLINA REGISTER 



May 2, 1994 



197 



LIST OF RULES CODIFIED 








1 


Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


10 NCAC 26B .0124 


/ 






/ 




04/01/94 




26H .0511 


/ 










04/01/94 




261 .0301 


/ 










04/01/94 




.0302 


/ 






/ 




04/01/94 




.0303 


/ 










04/01/94 




.0304 


/ 






/ 




04/01/94 




.0305 


/ 










04/01/94 




45H .0202 




/ 




/ 




04/01/94 




II NCAC IIB .0112 






/ 






04/01/94 




.0138 






/ 






04/01/94 




lie .0120 






/ 






04/01/94 




.0133 


/ 










04/01/94 




.0308 




/ 




/ 




04/01/94 




.0311 




/ 








04/01/94 




IID .0102 -.0103 






/ 






04/01/94 




IIF .0201 - .0203 


/ 






/ 




04/01/94 




.0204 


/ 










04/01/94 




.0205 - .0208 


/ 






/ 




04/01/94 




12 .0560 


/ 










04/01/94 




15 .0012 


/ 










04/01/94 




15A NCAC 28 .0211 




/ 








04/01/94 




.0305 




/ 




/ 




04/01/94 




.0308 




/ 




/ 




04/01/94 




.0315 - .0316 




/ 




/ 




04/01/94 




2H .0301 - .0306 






/ 






04/01/94 




lOB .0114 




/ 








07/01/94 




.0212 




/ 




/ 




07/01/94 




.0404 




/ 








07/01/94 




IOC .0205 




/ 








07/01/94 




.0407 




/ 








07/01/94 




lOD .0004 




/ 








07/01/94 




13A .0016 




/ 








04/01/94 




13B .1601 




/ 




/ 




04/01/94 




1 


198 9:3 


NORTj 


H CARC 


JLINA . 


REGISl 


^ER 




May 2, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15A NCAC 13B .1628 




/ 




/ 




04/01/94 




18A .1205 




/ 




/ 




04/01/94 




.2610 




/ 




/ 




04/01/94 




21H .0314 




/ 




/ 




04/01/94 




19A NCAC 2A .0201 






/ 






01/01/94 




2D .0409 






/ 






01/01/94 




.0411 






/ 






01/01/94 




2E .0216 - .0217 




/ 








04/01/94 




.0218 - .0219 




/ 




/ 




04/01/94 




.0221 




/ 




/ 




04/01/94 




3D .0515 






/ 






01/01/94 




.0604 






/ 






01/01/94 




.0818 






/ 






01/01/94 




.0826 






/ 






01/01/94 




3H .0101 - .0106 






/ 






01/01/94 




20 NCAC 7 .0101 




/ 








04/01/94 




.0102 




/ 




/ 




04/01/94 




.0103 - .0107 




/ 








04/01/94 




.0201 - .0202 




/ 




/ 




04/01/94 




.0203 




/ 








04/01/94 




.0301 




/ 




/ 




04/01/94 




.0302 




/ 








04/01/94 




.0303 




/ 




/ 




04/01/94 




.0304 




/ 








04/01/94 




.0305 




/ 




/ 




04/01/94 




.0401 




/ 








04/01/94 




.0402 - .0404 




/ 




/ 




04/01/94 




.0501 - .0505 




/ 








04/01/94 




.0602 




/ 








04/01/94 




.0603 




/ 




/ 




04/01/94 




21 NCAC 1 .0101 - .0103 


/ 










03/18/94 


180 DAYS 


8A .0105 






/ 






04/01/94 




.0301 




/ 








04/01/94 







9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



199 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 8A .0307 - .0308 




/ 




/ 




04/01/94 




.0309 




/ 








04/01/94 




.0315 




/ 








04/01/94 




8B .0202 




/ 




/ 




04/01/94 




.0502 




/ 




/ 




04/01/94 




8F .0103 




/ 




/ 




04/01/94 




.0105 




/ 




/ 




04/01/94 




.0107 




/ 




/ 




04/01/94 




.0112 


/ 






/ 




04/01/94 




.0302 




V 




/ 




04/01/94 




.0409 




/ 




/ 




04/01/94 




.0501 






/ 






04/01/94 




8G .0101 - .0103 






/ 






04/01/94 




.0106 - .0109 






/ 






04/01/94 




.0112 - .0114 






/ 






04/01/94 




.0201 - .0205 






/ 






04/01/94 




.0208 - .0210 






/ 






04/01/94 




.0211 - .0213 






/ 






04/01/94 




.0301 - .0306 






/ 






04/01/94 




.0310- .0312 






/ 






04/01/94 




.0401 




/ 




/ 




04/01/94 




.0406 




/ 




/ 




04/01/94 




.0409 




/ 




/ 




04/01/94 




8H .0002 




/ 








04/01/94 




.0003 






/ 






04/01/94 




.0004 




/ 








04/01/94 




81 .0001 




/ 




/ 




04/01/94 




.0004 




/ 




/ 




04/01/94 




8J .0001 - .0002 




/ 




/ 




04/01/94 




.0005 




/ 




/ 




04/01/94 




.0006 




/ 








04/01/94 




.0008 




/ 




/ 




04/01/94 




.0010 




/ 








04/01/94 







200 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 8J .0011 


/ 










04/01/94 




8K .0104 - .0105 




/ 








04/01/94 




.0201 




/ 








04/01/94 




.0301 


/ 










04/01/94 




8L .0001 - .0003 






/ 






04/01/94 




.0005 - .0006 






/ 






04/01/94 




.0008 






/ 






04/01/94 




.0010- .0018 






/ 






04/01/94 




.0019 - .0025 






/ 






04/01/94 




8M .0102 




/ 




/ 




04/01/94 




.0201 




/ 




/ 




04/01/94 




.0301 




/ 




/ 




04/01/94 




.0304 




/ 








04/01/94 




8N .0101 - .0102 


/ 










04/01/94 




.0103 


/ 






/ 




04/01/94 




.0201 


/ 






/ 




04/01/94 




.0202 - .0203 


/ 










04/01/94 




.0204 


/ 






/ 




04/01/94 




.0205 - .0207 


/ 










04/01/94 




.0208- .0211 


/ 






/ 




04/01/94 




.0212- .0213 


/ 










04/01/94 




.0301 


/ 










04/01/94 




.0302 - .0306 


/ 






/ 




04/01/94 




.0307 


/ 










04/01/94 




.0401 - .0406 


/ 






/ 




04/01/94 




.0407 - .0408 


/ 










04/01/94 




16F .0002 - .0005 




/ 








04/01/94 




.0007 - .0008 




/ 








04/01/94 




.0010 




/ 








04/01/94 




16S .0101 - .0102 


/ 










04/01/94 




.0201 - .0202 


• 










04/01/94 




.0203 


/ 






/ 




04/01/94 




.0204 


/ 










04/01/94 





9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



201 







LIST OF RULES CODIFIED 








1 


Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


1 

Temp. 
Expires 


21 


NCAC 16S 


.0205 


/ 










04/01/94 


1 




32B 


.0209 




/ 








04/01/94 


i 


.0212 




/ 




/ 




04/01/94 


1 


.0305 




/ 








04/01/94 




.0402 




/ 




/ 




04/01/94 




.0706 




/ 




/ 




04/01/94 






46 


.1606 


/ 






/ 




04/01/94 






54 


.1605 




/ 








04/01/94 




.1609 


/ 










04/01/94 




.2007 


/ 










04/01/94 




.2701 - .2702 


/ 










04/20/94 


1 80 DAYS 




57A 


.0101 - .0102 


/ 










07/01/94 




.0201 - .0203 


/ 










07/01/94 




.0204 


/ 






/ 




07/01/94 




.0205 


/ 










07/01/94 




.0206 - .0207 


/ 






/ 




07/01/94 




.0208 - .0209 


/ 










07/01/94 




.0210 


/ 






/ 




07/01/94 




.0301 - .0306 


/ 










07/01/94 




.0401 - .0408 


/ 










07/01/94 




.0501 


/ 






/ 




07/01/94 






57B 


.0101 - .0104 


/ 










07/01/94 




.0201 


/ 






/ 




07/01/94 




.0202 


/ 










07/01/94 




.0203 


/ 






/ 




07/01/94 




.0204 - .0205 


/ 










07/01/94 




.0206 - .0207 


/ 






/ 




07/01/94 




.0208 - .0212 


/ 










07/01/94 




.0301 - .0303 


/ 










07/01/94 




.0304 


/ 






/ 




07/01/94 




.0305 


/ 










07/01/94 




.0306 


/ 






/ 




07/01/94 




.0307 


/ 










07/01/94 





202 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 NCAC 57B .0401 - .0403 


/ 










07/01/94 




.0501 - .0503 


/ 










07/01/94 




.0601 - .0602 


/ 










07/01/94 




.0603 


/ 






/ 




07/01/94 




.0604 - .0612 


/ 










07/01/94 




57C .0101 - .0103 


/ 










07/01/94 




.0104 


/ 






/ 




07/01/94 




.0201 


/ 










07/01/94 




.0301 


/ 






/ 




07/01/94 




.0302 - .0303 


/ 










07/01/94 




.0401 


/ 










07/01/94 




58D .0203 




/ 








04/01/94 




.0209 




/ 








04/01/94 




25 NCAC ID .0512 




/ 




/ 




06/01/94 





9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



203 



RRC OBJECTIONS 



1 he Rules Rexiew Commission (RRC) objected to the following rules in accordance with G.S. 
143B-20.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 

Banking Commission 

4 NCAC 3F .0202 - Permissible Investments 
Agency Responded 
Agency Revised Rule 

Credit Union 

4 NCAC 6C .1401 - Signature Guarantee 
Agency Rexised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Marine Fisheries 

15A NCAC 31 .0010 - Military Prohibited and Restricted Areas 

Agency Rexised Rule 
15A NCAC 3J .0107 - Pound Nets 

Agency Rexised Rule 
15A NCAC 3K .0301 - Size and Harx'est Limit 

Agency Rexised Rule 
15A NCAC 30 .0102 - Procedure and Requirements to Purchase License 

Agency Rexised Rule 
15A NCAC 30 .0204 - Marking Shellfish Leases and Franchises 

Agency Rexised Rule 
15 A NCAC 30 . 0205 - Lease Renewal 

Agency Rexised Rule 

Soil and Water Conservation Commission 

15A NCAC 6F .0001 - Purpose 

Agency Rexised Rule 
15A NCAC 6F .0003 - Requirements fi^r Certification of )M2ste Mgmt Plans 

Agency Rexised Rule 
15 A NCAC 6F .0004 - Approved Best Management Practices (BMPs) 

Agency Rexised Rule 
15A NCAC 6F .0005 - Technical Specialist Designation Procedure 

Agency Rexised Rule 

Wildlife Resources and Wat«r Safety 

15A NCAC lOD .0002 - General Regulations Regarding Use 
Agency Withdrew Rule 

HU]VL\N RESOURCES 



RRC Objection 12/16/93 
Obj. Contd 01/20/94 
Obj. Removed 02/17/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



02/17/94 
02/17/94 



02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 



02/17/94 
02/17/94 
02/17/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/17/94 



03/17/94 



204 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



RRC OBJECTIONS 



Aging 

10 NCAC 22T .0101 - Scope of Health Screening Services 

Agency Revised Rule 
10 NCAC 22T .0201 - Provision of Health Screening Services 

10 NCAC 22U .0101 - Scope of Senior Companion 

Agency Revised Rule 
10 NCAC 22W .0101 - Scope of Home Care Services 

Agency Revised Rule 

Medical Assistance 

10 NCAC 261 .0304 - Hearing Procedures 
Agency Revised Rule 

INSURANCE 

Financial Evaluation Division 

11 NCAC lie .0308 - Foreign HMO: Successful Operation 
Agency Revised Rule 

11 NCAC llF .0207 - Specific Standards for Morbidity, Interest and Mortality 

Agency Revised Rule 
11 NCAC 1 IF .0208 - Reserves for Wiiver of Premium 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 
Certified Public Accountant Examiners 

21 NCAC 8A .0105 - Purposes and Responsibilities 

Agency Repealed Rule 
21 NCAC 8F .0103 - Filing of Examination Applications and Fees 

Agency Revised Rule 
27 NCAC 8F .0112 - Candidate's Request to Sit in Another Jurisdiction 

Agency Revised Rule 
21 NCAC 8G .0409 - Computation of CPE Credits 

Agency Revised Rule 
27 NCAC 8J .0008 - Firm Registration 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



01/20/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/17/94 
02/17/94 
03/17/94 



03/17/94 
03/17/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



27 NCAC 8N .0103 - CPAs Outside North Carolina 
Agency Withdrew Rule 




03/17/94 


^ndscape Architects 






27 NCAC 26 .0209 - Unprofessional Conduct 


RRC Objection 


01/20/94 


Agency Revised Rule 


Obj. Removed 


02/17/94 


21 NCAC 26 .0210 - Dishonest Practice 


RRC Objection 


01/20/94 


Agency Revised Rule 


Obj. Removed 


02/17/94 


21 NCAC 26 .0211 - Incompetence 


RRC Objection 


01/20/94 


Agency Revised Rule 


Obj. Removed 


02/17/94 


1-3 NORTH CAROLINA REGISTER 


May 2, 1994 


205 









RRC OBJECTIONS 



Medical Examiners 

21 NCAC32B .0402 - Fee 

AgenOt' Revised Rule 
21 NCAC 32B . 0706 - Fee 

Agency Revised Rule 
21 NCAC 32M .0006 - Prescribing Privileges 

Agency Revised Rule 

REAL ESTATE APPRAISAL BOARD 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
02/17/94 
02/17/94 



21 NCAC 57 A .0210 - Temporary Practice 

Agency Revised Rule 
21 NCAC 57B .0207 - Administration 

Agency Revised Rule 
21 NCAC 57B .0306 - Instructor Requirements 

Agency Revised Rule 
21 NCAC 57B .0603 - Criteria For Course Approval 

Agency Revised Rule 
21 NCAC 57C .0104 - Petition to Reopen Proceeding 

Agency Revised Rule 



RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/1 7/94 


RRC Objection 


03/17/94 


Obj. Removed 


03/17/94 



REVENUE 



Individual Income Tax Division 



17 NCAC 6B .0612 - Tax Credit for Qualified Business Investments 
Agency Revised Rule 



RRC Objection 03/17/94 
Obj. Removed 03/17/94 



STATE PERSOISfNEL 

Office of State Personnel 

25 NCAC ID .0211 - Salary Rate RRC Objection 02/17/94 

Agency Revised Rule Obj. Removed 02/1 7/94 

25 NCAC ID .0512 - Policy Making /Confidential Exempt Priority Consideration RRC Objection 02/17/94 

Agency Revised Rule Obj. Removed 03/1 7/94 

STATE TREASURER 

Collateralization of Deposits 



20 NCAC 7 .0202 - Amount of Collateral Required to be Pledged 

Agency Revised Rule 
20 NCAC 7 .0603 - Acceleration of Maturities 

Agency Revised Rule 



RRC Objection 03/17/94 

Obj. Removed 03/17/94 

RRC Objection 03/17/94 

Obj. Removed 03/17/94 



206 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 

ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Riyvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bemaitl Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Ednaid Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Coimn. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshbum, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limite, Inc. 

COMMERCE 

Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 

Crime Victims Compensation Commission 

James Hugh Baynes v. Crime Victims Compensation Commission 
James A. Canady v. Crime Victims Compensation Commission 
Virginia Roof v. Department of Crime Control & Public Safety 
Barbara Henderson v. Crime Victims Compensation Commission 
Georgeann \bung v. Crime Victims Compensation Commission 
Mary E. Haskins v. Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Gary E. Monlalbine v. Division of Coastal Management 

Environmental Health 

Jane C. O'Malley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

I^quotank-Perquimans-Camden-Chowan 
Environment, Health, & Natural Res. v. Clark Harris & Jessie I^ee Harris 



Consolidated Cases. 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



94 DOA 0242 



West 



93 COM 1622 Chess 



89 EHR 1378"^ GiBy 

90 EHR 0017* Gray 
93 EHR 1792 Nesnow 



91 EHR 0838 



93 EHR 0924 



Bee ton 



Bee ton 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1485 


Maim 


03/11/94 



03/01/94 



94 DOC 0252 Morrison 03/21/94 



93 CPS 0801 


West 


03/28/94 


93 CPS 1108 


Gray 


03/28/94 


93 CPS 1347 


Nesnow 


03/24/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 1406 


Gray 


03/17/94 



04/07/94 
04/07/94 
03/21/94 



04/06/94 
03/03/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:2 NCR 114 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



207 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



Chess 03/21/94 

Becton 03/21/94 



Environmental ManagerrunX 

Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 93 EHR 0531 

Jack Griffin v. Dept. of Environment, Health, and Natural Resources 93 EHR 1030 

Marine Fisheries 

Robert I. Swinson, Virginias. Swinsonv. EHNR. Div/Marine Fisheries 93 EHR 0394 Gray 04/11/94 



SotiJ Waste Management 

Roger Scssoms v. EHNR/ Asbestos Ha^aitl Management Branch 
Bertie Citizens Action Coalition, Inc.; Wlllaid J. Oliver, Reginald Early, 
Herbert Jenkins, Jr., Lindaood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Entviromnental 
Inc., et al. 

HUMAN RESOURCES 



93 EHR 0951 
93 EHR 1045 



Gray 03/28/94 

Morrison 04/06/94 



Division of CUld Development 

Judith Fridlcy^ v. Div. of Child Development/ Abuse/N^lect Unit 
Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 

Facility Services 

Charles E. Hunter, Jr.. M.D. & Coastal Perfusion Svcs, Inc. v. Cert of 
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion 
Corp. and Ho^vard F. Marks, Jr, M.D. 

Presh^-tcrian-Orthopaedic Hospital v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Division of Medical Assistance 

David Yott v. Department of Human Resources 

Division of Medical Assistance v. Catawba Cty Dept. of Social Services 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Child Support Enforcement Section 

William Heckstall v. Department of Human Resources 
Bryan Jeffrey Cole v. Department of Human Resources 
Dexter L. Chambers v. Department of Human Resources 
Ronald E. Johnson v. Department of Human Resources 
Roger Moore v. Department of Human Resources 
Alvin Lee Martin v. Department of Human Resources 
Robert Young v. Department of Human Resources 
Antonio Townsend v. Department of Human Resources 



93 DHR 0973 
93 DHR 1707 

93 DHR 1787 

93 DHR 1797 

94 DHR 0168 



Morrison 03/08/94 

Nesnow 03/22/94 

Nesnow 03/14/94 

Nesnow 03/21/94 

Nesnow 03/23/94 



93 DHR 0746 


Morgan 


04/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 1381 


Gray 


04/15/94 



93 DHR 1113 
93 DHR 1778 



94 DHR 0293 



Gray 
West 



Reilly 



04/05/94 
03/04/94 



04/15/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:3 NCR 214 



Troy E. Pinkney v. Department of Human Resources 93 CSE 1 148 


Maim 


03/29/94 






Walter Lee Corbett v. Department of Human Resources 93 CSE 1 150 


Reilly 


03/30/94 






Nash Andrew Newsome v. Department of Human Resources 93 CSE 1 170 


Mann 


03/17/94 






Samuel L. Dodd v. Department of Human Resources 93 CSE 1357 
TTicTinr 


Gray 


03/31/94 






Alarm Systems Licensing Board 










Alarm Systems Licensing Board v. George P. Baker 93 DOJ 0457 


Nesnow 


03/10/94 






208 9:3 NORTH CAROLINA REGISTER 


May 2, 1994 


L 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Private Protective Services Board 

Larty C. Hopkins v. Private Protective Services Boaid 

Training and Standards Division 

Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Gregory Blake Manning v. Criminal Justice Ed. &. Training Stds. Comm. 

MORTUARY SCIENCE 

Mortuary Science v. Perty J. Brown, & Brown's Funeral Directors 

PUBLIC EDUCATION 

Nancy Watson v. Boaid of Education 

Janet L. Wilcox v. Carteret County Boaid of Education 

STATE HEALTH BENEFITS OFFICE 

Timothy L. Coggins v. Teachers' & St Emp Comp Major Med Plan 

STATE PERSONNEL 

Agricuitural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
Juanita D. Murphy v. Agricultural and Technical State UniveiBity 
Thomas M. Simpson v. Agricultural and Technical State Utriversity 

North Carolina Central University 

Ha-Vilyah Ha-She'B v. NCCU 

Department of Commerce 

Ruth Daniel-Itrry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 

Department of Crime Control and Public Safety 

Fred L. Kearney v. Department of Crime Control &. Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 

Employment Security Commission of North Carolina 

Rejcarme B. LeFrancois v. Emplcymcnt Security Commission of N.C. 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

David R. Rodgers v. Timmy Summerville, Stonewall Jackson School 

Durham County Department of Social Services 
Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 

Menial Health/Menkil Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 



93 DOJ 1618 



93 DOJ 0231 
93 DOJ 1071 

93 DOJ 1409 

94 DOJ 0048 



93 BMS 0532 



93 EDC 0234 
93 EDC 0451 



93 INS 0929 



93 OSP 0875 



93 OSP 0725 



91 OSP 1287 



91 OSP 0401 

92 OSP 1463 



93 OSP 1069 



93 OSP 0728 



93 OSP 1604 



Morrison 03/07/94 



Chess 03/28/94 

Nesnow 04/11/94 

Gray 03/03/94 

Gray 03/29/94 



Chess 03/28/94 



Chess 02/28/94 

Mann 02/21/94 



Morrison 03/04/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 



Becton 



Chess 



Chess 



West 
Reilly 



West 



04/13/94 



03/04/94 



02/22/94 



03/18/94 
03/21/94 



04/08/94 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


94 OSP 0087 


Chess 


03/16/94 



Chess 



Becton 



04/11/94 



03/18/94 



9.3 NCR 218 



9:2 NCR 108 



9:3 NCR 211 



9:1 NCR 63 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



209 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Wik£ County Menial Health . Developmental Disabilities, and Substance Abuse Senices 

Julia Morgan Brannon v. Wake County MD/DD/SAS 
Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt. Sec'y Dept of Transporbtion 
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of TransporBtion 
Betsy Johnston PDwell v. Department of Transportetion 
Clyde Lem Hairston v. Department of Transportation 

STATE TREASURER 



94 OSP 0214 


Reilly 


04/14/94 








93 OSP 0297*' 


Morrison 


03/10/94 


9:1 


NCR 


60 


93 OSP 0500*' 


Morrison 


03/10/94 


9:1 


NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 








93 OSP 0944 


Chess 


02/28/94 









Retirement Systems Division 

John C. Russell v. Bd./Tmstecs/Teacheis' & State Employees' Ret. Sys. 
Robert A. Slade v. Bd.H'rustees/N.C. Ixjcal Govll. Emp. Ret. System 
Elizabeth M. Dudley v. Bd./Trustees/Teacheis' & Slate Employees' 
Retirement System 



93 DST 0164 
93 DST 0785 
93 DST 1474 



West 03/07/94 

Becton 03/18/94 

Nesnow 03/28/94 



9:1 NCR 68 



210 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF DURHAM 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

93 OSP 0875 



HA-YILYAH HA-SHE'B, 
Petitioner, 



V. 



NCCU, 



Respondent. 



ORDER OF DISMISSAL 

AND 

FINAL DECISION 



This matter is before the undersigned for consideration of the Respondent's Motion to Dismiss filed 
with the Office of Administrative Hearings on January 28, 1994. 

nNDINGS OF FACT 

1. On August 23, 1993, the Petitioner filed a Petition for a Contested Case Hearing in which he alleged 
that his appeal is based upon "Dismissal," "Demotion without just cause," "Retaliation," and "Other 
(whistle blower)." The Petitioner also alleged that the facts supporting his appeal were "termination, 
re-instatement, denial of position applied for, harrassment [sic]." 

2. The Petitioner has been employed as a Trades Worker I, pay grade 57, in the Respondent's Physical 
Plant since December 16, 1991. 

3. The Petitioner's supervisor sent him a letter of dismissal dated July 19, 1993, purporting to separate 
him pursuant to the Voluntary Separation without Notice provision of the State Personnel Manual. 
As a result of the Petitioner's subsequent communication with the Respondent, he was not separated 
from employment, and he returned to work on August 16, 1993. 

4. No personnel action forms separating the Petitioner were ever prepared by the Respondent, and the 
Petitioner was never removed from the Respondent's payroll. 

5. Prior to August 16, 1993, the Petitioner was assigned to the electrical shop unit in the physical plant. 

6. When the Petitioner returned to work on August 16, 1993, he was assigned to the paint shop unit in 
the Physical Plant. 

7. The Respondent gave the following reasons for changing the Petitioner's assignment: (1) the paint 
shop's shortage of personnel due to excessive painting requirements going on at that time, and (2) 
during the Petitioner's extended absence from work, an additional certified electrician had been hired 
who, along with the other certified electrician in the shop, was adequately handling the electrical shop 
workload without the need of the assistance of a Trades Worker I. 

8. The Office of State Personnel job description for a Trades Worker I states that "[ejmployees in this 
class perform semiskilled work in one moderately complex trade in connection with maintenance and 
repair of buildings. " Examples of the type of work falling within this category are listed as "dry wall 
taping/plastering, painting, roofing, and insulating pipes ducts, walls and ceilings." 

9. On or about June 18, 1992, the Respondent posted a position vacancy for a Maintenance Mechanic 
III. The Petitioner applied for the position but did not receive the promotion. The position went to 



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211 



CONTESTED CASE DECISIONS 



another permanent state employee, effective August 1, 1992. The Petitioner did not file a grievance 
regarding his denial of a promotion within thirty days of his receiving notice that he was not the 
successful applicant for the position. 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Administrative and judicial review of state personnel matters is governed by the North Carolina State 
Personnel Act, Chapter 126 of the North Carolina General Statutes and the Administrative Procedures 
Act, Chapter 150B of the North Carolina General Statutes. 

2. A state employee may file a contested case with the Office of Administrative Hearings ("OAH"), and 
thereby pursue an appeal, regarding any matter over which the State Personnel Act grants the State 
Personnel Commission subject matter jurisdiction. However, because OAH's jurisdiction over appeals 
involving personnel matters is derivative from the State Persormel Commission's jurisdiction, OAH 
does not have subject matter jurisdiction to hear matters when an appeal to the State Personnel 
Commission is not authorized by Chapter 126. There are many personnel matters for which no right 
of appeal to the State Personnel Commission is provided. 

3. The Petitioner's Petition indicates that he is appealing a dismissal from employment. The only 
purported dismissal regarding the Petitioner occurred on July 19, 1993. After further communication 
between the Petitioner and the Respondent, the dismissal was rescinded and the Petitioner was 
reinstated to his position as a Trades Worker I. The Petitioner was never actually separated from 
employment with the Respondent. Therefore, there is no dismissal for the Petitioner to appeal. 
Furthermore, if the Petitioner's intention is to appeal the July 19, 1993 action whereby the 
Respondent purported to dismiss him, he has failed to allege any fects that would tend to indicate that 
he suffered any actual adverse consequences as result of the Respondent's actions on July 19, 1993. 
The Petitioner has failed to state a claim for relief over which OAH has jurisdiction in regard to July 
19, 1993 purported dismissal. 

4. The Petitioner's Petition alleges that he has suffered a demotion without just cause. The term 
"demotion" is defined in the North Carolina Administrative Code as "a change in status downward 
resulting from assignment to a position of lower lever." 25 NCAC ID .0401. Although the 
Petitioner was assigned different job duties upon his return to work in August, 1993, his new job 
assignment was also within the Trades Worker I category. The Petitioner contends that this new job 
assignment afiFords him less opportunities for promotion than the job he held prior to his returning 
to work and, therefore, he considers his current job assignment to be a demotion. The Petitioner's 
current job assignment falls within the Trades Worker I category. Although his duties have changed, 
the Petitioner has not been assigned to a lower level position. Even if the Petitioner's perception that 
his opportunities for promotion have been diminished by his current job assignment is correct, in 
order to state a claim for relief, the Petitioner must be able to demonstrate that his lesser status is the 
result of being assigned to a position of lower level than that which he previously occupied in order 
to meet the definition of demotion found in the Administrative Code. The facts as alleged by the 
parties do not indicate that the Petitioner has sustained a demotion to a lower level position. 
Therefore, the Petitioner has failed to state a claim upon which relief over which OAH has 
jurisdiction. 

5. The Petitioner checked retaliation as a grounds for his appeal. The State Personnel Act provides a 
right of appeal to any State employee "who has reason to believe that employment, promotion, 
training, or transfer was denied him or that demotion, lay off or termination or employment was 
forced upon him in retaliation for opposition to alleged discrimination . . . . " Nothing in the various 
documents the Petitioner has filed or in his oral arguments indicates that the retaliation and 
harassment that the Petitioner is complaining about is the result of the Petitioner's opposition to 
alleged discrimination. Not all forms of conduct that might be considered retaliatory form a basis for 



212 9:3 NORTH CAROLINA REGISTER May 2, 1994 



CONTESTED CASE DECISIONS 



pursuing an appeal before the State Personnel Commission. Again, the Petitioner has failed to state 
a claim upon which relief can be based and over which OAH has jurisdiction. 

6. The Petitioner has checked on his Petition "Other" as a grounds for his appeal, and has indicated that 
"whistle blower" is the grounds for this allegation. Chapter 126 does not give OAH jurisdiction over 
whistle blower claims. Therefore, this allegation by the Petitioner tails to state a claim over which 
OAH has jurisdiction. 

7. The Petitioner also alleges that he was denied a position for which he applied. The facts alleged by 
both parties indicate that the only position for which the Petitioner has applied during the course of 
his employment with the Respondent is a Maintenance III position which was posted on June 18, 
1992, and was filled effective August 1, 1992. The State Personnel Act requires that an employee 
appeal an adverse personnel action within thirty days of the occurrence or knowledge of the 
occurrence. Thus, the Petitioner's attempt to now appeal the denial of the 1992 promotion is untimely 
and OAH lacks jurisdiction over this claim. 

8. Insofar as the Petitioner has failed to state a claim upon which relief can be based and has failed to 
state a claim which OAH has jurisdiction over, the Petitioner's Petition for a Contested Case Hearing 
must be dismissed. 

FINAL DECISION 

The Petitioner's petition for a contested case hearing is DISMISSED. 

NOTICE 

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior 
Court of Wake County or in the superior court of the county where the person resides. The Petition for 
Judicial Review must be filed within thirty days after the person is served with a copy of the Final Decision. 
North Carolina General Statutes section 150B-46 describes the contents of the Petition and requires service 
of the Petition on all parties. 

This the 13th day of April, 1994. 



Brenda B. Becton 
Administrative Law Judge 



9:3 NORTH CAROLINA REGISTER May 2, 1994 213 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF BERTIE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 EHR 1045 



BERTIE CITIZENS ACTION COALITION, INC.; 
VMLLARD J. OLIVER, REGINALD EARLY, 
HERBERT JENKINS, JR., LINDWOOD EARL 
TRIPP, WILLIE WARREN TRIPP, MARY ALICE 
CHERRY, and KATHY BURDEN 
Petitioners, 



NORTH CAROLINA DEPT. OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES, SOLID 
WASTE MANAGEMENT DIVISION 
Respondent, 

and 

EAST CAROLINA ENVIRONMENTAL, INC., 
ADDINGTON ENVIRONMENTAL, INC., et al., 

Intervenors. 



ORDER ON MOTIONS TO DISMISS 
AND ALTERNATIVE MOTION 
FOR SUMMARY JUDGMENT 



This case came on for decision before the undersigned Administrative Law Judge on motions tc 
dismiss filed by the Respondent and by Intervenors East Carolina Environmental, Inc. and Addingtoi 
Environmental, Inc., by Intervener Bertie County, by Intervener Albemarle Regional Solid Waste 
Management Authority, in its own behalf, and as designee of Intervenors Perquimans, Currituck, Dare, Hyd- 
and Tyrrell Counties, and by Intervenors Camden and Pasquotank Counties. Intervenors East Caroline 
Environmental, Inc. and Addington Environmental, Inc. also filed an alternative motion for summarj 
judgment. The undersigned Administrative Law Judge has considered these motions, all of the briefs file< 
in support of these motions, and the brief filed by Petitioners in opposition to these motions, as well as al 
other pleadings in the case file. 

Based upon the foregoing, the undersigned Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. In this action, the Petitioners are challenging the Respondent's issuance on August 6, 199: 
to East Carolina Environmental, Inc. of a permit to construct a solid waste landfill. The permit was issue* 
pursuant to Chapter I30A of the North Carolina General Statutes and regulations promulgated thereunder. 

2. The administrative hearing provisions of Article 3, Chapter 150B do not establish the righ 
of a person "aggrieved" by agency action to OAH review of that action, but only describe the procedures fo 
such review. Batten v. North Carolina Dep't of Correction . 326 N.C. 338, 389 S.E.2d 35 (1990). Any OAF 
jurisdiction over petitions for review derives from the statute which is the basis of the claim, in this cas( 
Chapter 130A. Chapter 130 A must grant the Petitioners the right to an administrative hearing in the GAP 
in order for the OAH to have jurisdiction over this petition. 

3. The appeals procedure for claims arising under Chapter 130A is found in § 130A-24. At th' 



214 



9:3 



NORTH CAROLINA REGISTER 



May 2, 199' 



CONTESTED CASE DECISIONS 



time the petition was filed, that section stated that appeals would be governed by the Administrative Procedure 
Act if they concerned "the enforcement of rules" adopted by the Commission for Health Services, "the 
suspension and revocation of permits and program participation", and "the imposition of administrative 
penalties." The statute did not include claims by persons adversely affected by the issuance of a permit by 
the North Carolina Department of Environment, Health, and Natural Resources ("the Department"). The 
statute did not grant third parties the right to review in the OAH. Petitioners did not, therefore, have the 
statutory right to file a petition challenging the issuance of a permit in OAH. 

4. The day after Petitioners filed their challenge, the statutory right to file a challenge in OAH 
was expanded. The new statutory provision changed the law by allowing "any person" challenging any action 
of the Department taken pursuant to Chapter 130A or pursuant to rules promulgated under the Chapter to file 
a petition for contested case hearing in OAH. Petitioners could not take advantage of this statutory change 
because it limits the time for taking a challenge to 30 days after notice of the contested action, and Petitioners 
waited almost 60 days to file this action. Therefore, the petition should be dismissed for lack of jurisdiction. 

5. Even if the Petitioners had been given a right to file their challenge in OAH, they have not 
stated a claim for relief. 

6. Petitioners ground their challenge on two legal bases— one statutory and the other regulatory. 
The Petitioners now concede that their statutory challenge, based on the Department's alleged failure to 
comply with N.C.G.S. § 130A-295, should be dismissed since that statute applies to hazardous waste facilities 
and not to this solid waste landfill. 

7. Petitioners regulatory challenge is based on rules adopted on June 30, 1993, to become 
effective October 9, 1993, and codified at 15A N.C.A.C. 13B .1600 et^ seg. The action challenged in this 
case, issuance of the construction permit, took place before the effective date of these regulations. New 
regulations and other newly adopted laws are presumed to have prospective effect only. Wilson Ford Tractor. 
Inc. y, Massev-Ferguson. Inc. , 105 N.C. App. 570, 573, 414 S.E.2d 43, 35 (1992). In this case, there is 
no language in the regulations stating that they are to be applied retroactively nor otherwise indicating an 
intent to apply them retroactively. Hence, these regulations have prospective effect only and cannot govern 
the actions of the Department in issuing a permit before the regulations became effective. Petitioners' 
challenge to the August 6, 1993 permit issuance based on an alleged violation of regulations effective October 
9, 1993 should therefore be dismissed. 

8. Even giving the Petition a very generous reading, it does not allege facts that indicate a 
violation of the statutes or regulations effective at the time the construction permit was issued. The gist of 
petitioners' complaint is that the permit does not include adequate requirements to control leachate or to 
protect adjacent wetlands. The regulations in effect on August 6, 1993 required new landfills to have liners 
and leachate collection systems "as necessary to comply with groundwater standards", and also prohibited the 
discharge of fill or dredge material into wetlands. 15A N.C.A.C. 13B .0503. 

9. The petition alleges that potential malfunctions in the leachate collection system "could 
possibly" cause some undefined groundwater contamination, but it does not allege facts that indicate a design 
change is "necessary to comply with groundwater standards." Groundwater standards do not prohibit all 
groundwater contamination. On the contrary, they require that groundwater contaminants be kept within 
specified limits outside the compliance boundary which is 250 feet from the waste boundary or 50 feet within 
the property boundary, whichever point is closer to the source. The Petition does not allege that the 
permitted leachate collection system is inadequate to meet these specific standards and therefore does not 
allege a violation of the former rules with respect to groundwater. 

10. With respect to wetlands, the petition merely alleges that borrow area depressions "will 
likely" create lakes, in which case those so called lakes "may impact" wetlands. These statements, however 
liberally construed, do not amount to an allegation that the construction permit allowed the "discharge of 
dredged or fill material" into wetlands and therefore the petition fails to state a violation of any applicable rule 
or regulation. 



9:3 NORTH CAROLINA REGISTER May 2, 1994 215 



CONTESTED CASE DECISIONS 



11. Viewing the petition as a whole, and giving the Petitioner the benefit of every reasonable 
inference, the petition itself fails to "state facts tending" to establish that the agency acted erroneously, failed 
to use proper procedure, acted arbitrarily or capriciously, or foiled to act as required by law or rule. It 
therefore fails to state a claim for relief and must be dismissed. 

12. Even if the petition had stated a claim and was properly before OAH, East Carolina 
Environmental, Inc. and Addington Environmental, Inc. have demonstrated that summary judgment should 
be entered against Petitioners. Documents from the permitting file and the affidavit of William Hodges, a 
professional engineer with experience in the design of over 100 sanitary landfills, demonstrate that the leachate 
collection system for this landfill has been hydraulically designed to remove leachate from the landfill under 
even extreme circumstances such as a 25 year storm event. It will thus prevent groundwater contamination 
even after complete settlement. Mr. Hodges affidavit also makes clear that the proposed landfill construction 
was preceded by a wetlands delineation analysis, in which the Corps of Engineers concurred, to ensure that 
construction activities would not take place in or have an adverse impact on wetlands. 

13. Mr. Hodges' affidavit also demonstrates that the construction of the landfill under the 
challenged construction permit was completed on October 8, 1993, and an operating permit has been issued 
for the landfill by the state. This operating permit superseded the construction permit, and hence the 
Petitioners' challenge to the construction permit has become moot. 

14. The record in this case establishes cause for the intervention often counties that now use and 
find it necessary to continue to use the landfill to satisfy their solid waste management requirements, including 
Bertie County where the landfill is located. These counties, including Bertie County, have acted within their 
authority under G.S. § 153A-136 to regulate solid waste and their use of the landfill is consistent with 
applicable state regulations. 

15. Even if Petitioners had a right to OAH review, they still must establish that they are 
"aggrieved persons" who have been specially damaged distinct from the rest of the community and 
substantially prejudiced by the issuance of the construction permit in this case. The record establishes that 
the new landfill is located immediately adjacent to the existing landfill which is unlined and lacks the 
environmental protections found in the new landfill. The Petitioners have failed to state facts tending to show 
or proffer evidence tending to establish that construction of the new and environmentally more protective 
landfill adjacent to the old landfill would cause them special damages distinct from the rest of the community 
and substantially prejudice them. 

16. Petitioners have filed no affidavits in response to the pending motion for summary judgment. 
However, the North Carolina Rules of Civil Procedure, adopted by OAH rules, require an opponent of 
summary judgment to file affidavits or present other evidence which "must set forth specific facts showing 
that there is a genuine issue for trial." If Petitioners contend they have not had time to gather the necessary 
evidence, the Rules require that they file "affidavits" explaining what "facts essential to justify [their] 
opposition" could not be presented by affidavit or otherwise. In this case Petitioner's brief states that further 
discovery is needed, but they have not explained by affidavit or otherwise what facts essential to justify their 
opposition could not be presented now. Indeed, it appears that the Respondents" challenged decision and the 
entire file on which that decision was based are a matter of public record which Petitioners' have had many 
months to review. Petitioners' inability to present evidence, by way of conflicting expert testimony or 
otherwise, to contradict the Hodges affidavit or to explain why such evidence could not now be presented 
demonstrates that summary judgment should be entered against them. 

Based on the foregoing Conclusions of Law, it is hereby ORDERED that the motions to dismiss are 
granted and the Petition is hereby DISMISSED because the Petitioners do not have a right by statute or 
otherwise to a contested case hearing in the Office of Administrative Hearings and because the Petition fails 
to state a claim for relief. Alternatively, if this matter is remanded, the undersigned will recommend that the 



216 9:3 NORTH CAROLINA REGISTER May 2, 1994 



CONTESTED CASE DECISIONS 



Petition be dismissed on summary judgment because the record demonstrates that there is no genuine issue 
of feet material to the disposition of Petitioners' claims and the Respondent is entitled to judgment as a matter 
of law. 



DATED this 6th day of April, 1994. 



The Honorable Fred G. Morrison, Jr. 
Senior Administrative Law Judge 



9:3 NORTH CAROLINA REGISTER May 2, 1994 217 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ROWAN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 DOJ 1071 



WILLIE DAVID MOORE 
Petitioner, 

V. 

N.C CRIMINAL JUSTICE EDUCATION AND 
TRAINING STANDARDS COMMISSION 
Respondent. 




The above-captioned matter was heard before Administrative Law Judge Dolores O. Nesnow on 
February 23, 1994, in High Point, North Carolina. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Abraham Penn Jones 
Attorney at Law 
PC Box 326 
Raleigh NC 27602 
Attorney for Petitioner 

Robin P. Pendergraft 

Special Deputy' Attorney General 

NC Department of Justice 

PO Box 629 

Raleigh NC 27602-0629 

Attorney for Respondent 

ISSUE 



Did Respondent err in determining that Petitioner's certification as a correctional officer must be 
suspended based on a DWI received by Petitioner on or about May 26, 1993? 

STATUTES AND RULES 

N.C. Gen. Stat. 20-138.1 

N.C. Gen. Stat. 20-179 

N.C. Admin. Code, tit. 12, r. 9A. 0103(5) 

N.C. Admin. Code, tit. 12, r. 9A.0103(20)(b) 

N.C. Admin. Code, tit. 12, r. 9A. 0204(b)(3)(A) 

N.C. Admin. Code, tit. 12, r. 9A.0205(b))(l) 

MOTION 



On February 22, 1994, at 4:00 p.m., a Motion to (Juash was filed by Respondent, 
taken up as the first order of business at the call of the case on the following day. 



The Motion was 



218 



9:3 



NORTH CAROLINA REGISTER 



May 2, 1994 



CONTESTED CASE DECISIONS 



Respondent's Motion to Quash involved a subpoena duces tecum for: 

1 . Copies of all personnel files relating to Petitioner; 

2. Records of all correctional officers of any rank who received any misdemeanor infractions 
within the last year and are still employed at Piedmont Correctional Institute. 

Petitioner responded that the request for the personnel files of other correctional officers was 
withdrawn. Petitioner further noted that he was withdrawing his request for his own personnel file since the 
personnel file in the custody of the Superintendent of Piedmont Correctional Institute is not the major 
personnel file, but is only a local "jacket. " 

This Motion requiring no further action, no ruling was issued. 

PRESENTATION OF HEARING 

Upon being called to present their case, Respondent noted that they would call no witnesses since the 
Stipulations to the Class B Misdemeanor and the rules which regulate disciplinary action based upon such a 
conviction, speak for themselves. Respondent further asserted that any grounds for a reduction in sentencing 
must be presented by the Petitioner. Respondent then requested particular notice of the rule as outlined above. 
N.C. Admin. Code tit 12, r. 9A.0103(5), N.C. Admin. Code tit. 12, r.9A.0103(20)(b), and N.C. Admin. 
Code tit. 12, r.9A.0204(b)(3)(A). 

EXHiBrrs 

For Petitioner: 

P#l Letter to Petitioner from Ronald E. Jones, Superintendent, Piedmont Correctional Institution - 7/8/93 
P#2 Letter to Petitioner from Ronald E. Jones, Superintendent, Piedmont Correctional Institution - 8/2/93 
P#3 Letter to Petitioner dated 8/9/93 informing him of his demotion and transfer; Letter to Petitioner from 
Jeffrey R. Becker, NC DOC - 8/26/93; Memo to Jeffrey Becker, NC DOC from Petitioner - 8/20/93 
P#4 Petitioner's PMS for 6/ 1 /92 to 5/3 1 /93 

For Respondent: 

R#l Citation issued to Petitioner on 3/3/93 
R#4 Impaired driving sentence form - 5/26/93 

R#5 Letter to Petitioner from David D. Cashwell, Director, N.C. Department of Justice, Criminal Justice 
Standards Division 

STIPULATION AGREEMENTS 

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are 
proper, both parties received notice of hearing, and Petitioner received the Deferral of Suspension 
of his Law Enforcement Officer Certification letter mailed by Respondent on August 2, 1993. 

2. The North Carolina Criminal Justice Education and Training Standards Commission has the authority 
granted under Chapter 17C of the North Carolina General Statutes and title 12 of the North Carolina 
Administrative Code, Chapter 9, to certify criminal justice officers and to deny, revoke, or suspend 
such certification. 

3. Petitioner applied with Respondent's predecessor, the North Carolina Criminal Justice Training and 
Standards Council, for certification as a correctional officer with the North Carolina Department of 
Correction (Odom Correctional Institution) in July 1974. 



9:3 NORTH CAROLINA REGISTER May 2, 1994 219 



CONTESTED CASE DECISIONS 



4. Petitioner was issued a probationary certification (PRB2458290(X)) by the Council effective July 19, 
1974. 

5. Petitioner successfully completed the Basic Course for Correctional Officers at the North Carolina 
Justice Academy on March 28, 1975. 

6. Petitioner was issued a general certification (GNB245829000) by the Council effective March 22, 
1976. 

7. Petitioner separated from his employment with the Department of Correction (Piedmont Correctional 
Institution) on October 9, 1990 for extended military active duty. 

8. Petitioner applied with Respondent for certification as a correctional officer with the Department of 
Correction (Piedmont Correctional Institution) in May 1991. 

9. Petitioner was issued a general certification (GNB245829000) by Respondent effective June 10, 1991. 

10. On or about January 30, 1993, Petitioner was charged by Trooper H.L. Howell with the offense of 
Driving While Impaired (DWI) in violation of N.C. Gen. Stat. 20-138.1. 

11. On or about May 26, 1993, Petitioner entered a plea of guilty to and was found guilty of DWI 
(93CR01588) before and by the Honorable Robert W. Johnson, District Court Judge Presiding. The 
Court imposed a level two (2) punishment and sentenced Petitioner to a term of imprisonment for one 
(1) year, suspended the sentence for the term of three (3) years at which time he was placed on 
supervised probation. The Court further ordered that Petitioner serve an active term of seven (7) days 
in the custody of the Sheriff of Iredell County. 

12. DWI is a Class B Misdemeanor. 

Based upon careful consideration of the testimony and evidence presented at the hearing and the 
documents and exhibits received into evidence, the undersigned makes the following: 

FINDINGS OF FACT 

1. Petitioner has been a correctional officer with the North Carolina Department of Correction (DOC) 
for 19 years. 

2. In January of 1993, Petitioner was charged with DWI and subsequently pled guilty to that charge in 
Iredell County District Court. 

3. Petitioner received a 12 month sentence suspended for three years, supervised probation, a monetary 
fine, a requirement to attend a substance abuse course, and the revocation of his license for 7 days. 
Petitioner also received 7 days active time which he was allowed to serve on weekends. 

4. During the 19 years of Petitioner's service with DOC, he rose from the lowest rank, Correctional 
Officer, to the rank of Captain. 

5. At the time Petitioner was cited for DWI, he reported that citation in a timely manner to his 
supervisor as is required by the regulations of DOC. 

6. At the time Petitioner pled guilty and was convicted of DWI, he reported that conviction to his 
supervisor in a timely manner as is required by the regulations of DOC. 

7. Previously, Petitioner had received two other convictions for DWI: one in 1979 and the other on 
January 14, 1987. 



220 9:3 NORTH CAROLINA REGISTER May 2, 1994 



CONTESTED CASE DECISIONS 



8. The Superintendent of Piedmont Correctional Institution (Piedmont), Ronald E. Jones, on July 8, 
1993, took the following punitive action against Petitioner for the DWI conviction: 

a. Petitioner was reduced from the rank of Captain to the rank of Correctional Officer; 

b. Petitioner received a reduction in pay of 15%; and 

c. Petitioner was transferred from Piedmont Correctional Institution to Rowan Correctional 
Institution. 

9. During his time at Piedmont, Petitioner's direct supervisor was Todd Pinion. 

10. Superintendent Jones testified and it is found as feet that Petitioner was a good worker, was always 
on time, was a leader among his peers, and has a good work ethic. 

11. Superintendent Jones further testified that Petitioner's evaluations, to his knowledge, were at least 
"good" and probably many were above average. 

12. Superintendent Jones was the ultimate decision maker as to the punishment given to Petitioner. 

13. Superintendent Jones decided on the punishment as outlined above because he considered the DWI 
to be a serious violation and a particularly important violation since Petitioner was a Captain and a 
leader who was expected to set an example for people on his crew. 

14. Petitioner was promoted to Correctional Captain in 1992 and during his tenure as a Captain he 
supervised 60 other officers on the second shift. 

15. Petitioner testified, and it is found as feet, that on the night of his DWI, he had been visiting friends 
in Salisbury, 33 miles from his home in Statesville. He testified that he was drinking but that he 
stopped drinking at some time prior to the time when he anticipated he would be driving. 

16. Petitioner also testified that on his way home, he drove a curve to the right and crossed the line at 
the right shoulder of the road. He was stopped by a trooper because of the swerving of his vehicle 
and when the trooper asked if he had been drinking, he responded "Yes." 

17. The trooper gave Petitioner a portable breathalyzer and then took him to the Iredell SherifPs Office 
for an additional breathalyzer test. 

18. Petitioner was told that he had blown a . 12 on the initial blow and a .11 on the second. 

19. After receiving the 1979 DWI, Petitioner received a reprimand from Respondent. 

20. After receiving the 1987 DWI, Petitioner received a written warning from Respondent. 

21. During his tenure as Correctional Officer, Petitioner has received no complaints from his fellow 
officers or supervisors, but has received complaints from inmates which he testified is a common 
occurrence. 

22. During his tenure as a Correctional Officer, Petitioner received no reprimands other than the ones 
involving the DWIs. 

23. When Petitioner took the examination for promotion to the rank of Correctional Captain, Petitioner 
received 100% on the examination and was only one of three in the State to receive that grade. 
Petitioner received a letter of commendation which was placed in his "jacket. " 

24. Petitioner testified that his only explanation for the three DWIs is that he apparently made bad 
decisions concerning driving after he had been drinking. 



9:3 NORTH CAROLINA REGISTER May 2, 1994 221 



CONTESTED CASE DECISIONS 



25. On August 2, 1993, Petitioner was sent a letter from the Director of Criminal Justice Training and 
Standards informing him that his certification was being suspended for five years, but that suspension 
was being deferred during the time in which Petitioner might file a request for an administrative 
hearing. 

26. N.C. Gen. Stat. 17C-6 provides that the N.C. Criminal Justice Education and Training Standards 
Commission (Commission) shall have the power to promulgate rules and to establish minimum 
educational and training standards for law enforcement officers. 

27. N.C. Admin. Code tit. 12, r.9A.0103(5) defines Correctional Officer and .0103(20)(b) defines Class 
B Misdemeanor. 

28. N.C. Admin. Code tit. 12, r.9A. 0204(b)(3)(A) provides that the Commission may suspend, revoke, 
or deny the certification of a Criminal Justice Officer who has been convicted of a Class B 
Misdemeanor. 

29. N.C. Admin. Code tit. 12, r.9A.0205(b)(l) provides that a suspension or denial shall be not less than 
5 years. That rule further provides that the Commission may reduce or suspend the period of 
sanction or substitute a period of probation following an administrative hearing where the cause of 
sanction is commission of a crime other than those listed in part (a) this rule, which subpart does not 
include Class B Misdemeanors. 

30. N.C. Gen. Stat. 20-138.1 defines the off'ense of impaired driving. 

31. N.C. Gen. Stat. 20-179 provides that, for purposes of sentencing after a conviction of N.C. Gen. 
Stat. 20-138.1, an aggravating factor v,'ould be a prior conviction involving impaired driving within 
the prior 7 years. 

Based on the above Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Petitioner was convicted of a Class B Misdemeanor and the Commission may suspend or revoke his 
certificate for a period not less than 5 years. 

2. A Class B Misdemeanor is a crime which does not fall under N.C. Admin. Code, tit. 12, 
r.9A. 0205(a) and the Commission may reduce or suspend the five year suspension or revocation or 
may substitute a period of probation following an administrative hearing. 

3. Petitioner has three times been convicted of DWI, albeit some years apart. The evidence which 
indicates that Petitioner is a good, successful and long-term employee, also indicates that he has a 
long-standing problem of some nature which involves alcohol consumption during his off duty time 

The Commission has been authorized by regulation (N.C. Admin. Code, tit. 12, r.9A. 0205(b)) to 
exercise its discretion in determining the appropriate sanction after an administrative hearing, 
including either a shortened period of suspension or revocation or probation. 

This Petitioner has been sentenced by the Courts of General Justice and has, no evidence to the 
contrary', served that sentence. Petitioner has also been sanctioned internally by his demotion 
transfer, and reduction in pay. 

An additional and severe sanction from the Commission, while such sanction would clearly send a 
strong message to other law enforcement officers and to the public, may not achieve the critically 
important goal of keeping Willie Moore from driving under the influence again. In fact, 
unemployment of a long term career employee might contribute to this occasional but dangerou 



1 



222 9:3 NORTH CAROLINA REGISTER May 2, 1994 



CONTESTED CASE DECISIONS 



occurrence. 

For these reasons and in recognition of Petitioner's 19 years of service and, more importantly, in 
recognition of the unique opportunity the Respondent has to effect a change in the Petitioner's 
drinking habits which create a danger to the people of the State, the undersigned recommends that 
the Commission consider a penalty less than a five year suspension or revocation. 

Based on the above, the undersigned makes the following: 

RECOMMENDATION 

That the Commission suspend Petitioner's certificate for five years with all but three months of that 
time suspended on the condition that Petitioner complete an alcohol rehabilitation program or an alcohol- 
related therapy program, which program shall be approved by the Commission and paid for by Petitioner, and 
on the further condition that Petitioner not further violate any alcohol related laws. Any further alcohol- 
related violation during the five year period will be a violation of the conditions of this sanction and will 
immediately activate the full five year suspension. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Criminal 
Justice Education and Training Standards Commission. 

This the 1 1th day of April, 1994. 



Dolores O. Nesnow 
Administrative Law Judge 



I 



,)j||P:3 NORTH CAROLINA REGISTER May 2, 1994 223 





NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 




1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two 


of these, 


titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major | 


department in the North Carolina executive branch of government has been assigned a title 


number. 1 


Titles are further broken down into chapters which shall be numerical in order. The other two, | 


subchapters and sections are optional subdivisions to be used by agencies when appropriate. 




TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINIS IRATIVE CODE 1 


TITLE 


DEPARTMENT LICENSING BOARDS 


CHAFIER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 





3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electncal Contractors 


18 


12 


Justice 


Electrxjlysis 


19 


13 


Labor 


Foresters 


20 


14A 


Cnme Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Commumty Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & T And Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 


Note: Ti 


tie 21 contains the chapters of the various occupational licensing boards. 




224 


9:3 NOR 


TH CAROLINA REGISTER Ma 


y 2, 1994 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 



Unless otherwise identified, page references in this Index are to proposed rules. 



AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Energy Division, 4 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

DEM/ Air Quality, 80 

Environmental Management, 81 

NPDES Permit, 3 

Solid Waste Management, 171 

Water Resources, 165 

Wildlife Resources Commission, 38, 42, 84 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Facility Services, 4, 128 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36 

Social Services, 136 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99 

INSURANCE 

Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

JUSTICE 

Criminal Justice Education and Training Standards Commission, 149 



9:3 NORTH CAROLINA REGISTER May 2, 1994 225 



CUMULATIVE INDEX 



LABOR 

OSHA, 77, 160 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Landscape Architects, Board of, 95 

Medical Examiners, 192 

Nursing, Board of, 45 

Optometry, Board of Examiners, 194 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

LIST OF RLTLES CODIFIED 

List of Rules Codified, 53, 196 

TRANSPORTATION 

Highways, Division of, 85 
Motor Vehicles, Division of, 89 



226 9:3 NORTH CAROLINA REGISTER May 2, 1994 



NORTH CAROLE^A ADMINISTRATIVE CODE 



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